Debevoise & Plimpton LLP has filed an amicus brief on behalf of Microsoft in Facebook, Inc. v. the State of New Jersey, a law enforcement access and data privacy case which centers on whether law enforcement can use a search warrant to obtain prospective communications. The underlying case related to the collection of data from two private citizens’ accounts at Facebook, but the implications are far broader. The case is currently on appeal to the New Jersey Supreme Court.

The amicus brief argues that the ongoing appeal has the potential to impact the Fourth Amendment rights of users who use the products and services of Microsoft and other technology companies, and that protecting reasonable expectations of privacy is fundamental to maintaining users’ trust in these platforms. The New Jersey Appellate Division’s decision to permit prospective, ongoing searches of electronic communications through a search warrant, on a single showing of probable cause, marks a stark departure from historical jurisprudence and law enforcement practice nationwide. It also places New Jersey law at the edge of a slippery slope that could threaten to transform ongoing, prospective surveillance into an investigative norm, rather than a rarely used last resort. The decision, if allowed to stand, would also threaten long-standing protections for the private communications of Americans—including New Jersey residents, businesses, and organizations—by permitting law enforcement to use conventional search warrants to surreptitiously surveil individuals’ electronic communications on a prospective and ongoing basis.

The brief urges the New Jersey Supreme Court to reverse the Appellate Division’s decision, arguing that although the decision currently only pertains to Facebook, it easily could be extended to other communications platforms involving many other technology companies. The resulting impact could erode long-established constitutional privacy safeguards which could harm both consumers and businesses.

The Debevoise team was led by litigation partners Erez Liebermann and Jim Pastore and included counsel Kristin Kiehn and associates Corey Goldstein, Becca Guthri, Martha Hirst, Stephanie Thomas and Mengyi Xu.