In December 2022, Debevoise & Plimpton LLP filed an amicus brief with the New Jersey Supreme Court on behalf of Microsoft in Facebook, Inc. v. the State of New Jersey, a law enforcement access and data privacy case. Law enforcement in New Jersey sought to collect the prospective content of Facebook accounts by means of a search warrant in lieu of a wiretap order. Google joined in the brief. This week, citing favorably to Microsoft’s amicus brief, the New Jersey Supreme Court ruled that law enforcement must obtain a wiretap, rather than a search warrant, to collect nearly contemporaneous communications.

The Court’s decision is a victory for privacy rights and reinforces the heightened constitutional protections afforded to prospective electronic communications. The Court acknowledged the practical implications that would result from permitting the prospective collection of communications based solely on a single finding of probable cause, including the likelihood that law enforcement would eschew wiretaps in favor of the more-easily obtained search warrants. Such a result would shake the trust that users have with these platforms to safeguard their expectations of privacy, as guaranteed by the state and federal constitutions’ protections against unreasonable searches and seizures.

Microsoft’s amicus brief highlighted how the Court’s decision would not only impact Facebook, but all communication platforms and technology companies, such as Microsoft and Google. In reaching its decision, the Court relied on Microsoft’s assertion that it rarely received requests for the collection of prospective communications, but when it did, such request always took the form of a wiretap order.

The Court also granted Microsoft’s application to participate in the oral argument, which was handled by Debevoise partner Erez Liebermann. The Debevoise team was led by litigation partners Erez Liebermann and Jim Pastore and included counsel Kristin Kiehn and associates Corey Goldstein, Becca Guthrie, Martha Hirst, Stephanie Thomas and Mengyi Xu.