TRENTON -- Police in New Jersey can sift through a suspect's private social media messages without applying for an order under the state's wiretapping laws, according to a state appeals court decision published Thursday.

The three-judge panel ruled communications such as direct messages and protected posts on platforms like Twitter aren't subject to the tighter privacy rules that apply to telephone calls.

The court held that authorities still need a communications data warrant before they can compel social media companies to produce private user data.

But experts say such warrants typically put a lower burden on police than wiretap orders, which only apply to certain serious crimes and require police show they can't obtain the information they're looking for any other way. 

Court makes it easier for cops to get your phone records

Lawrence Lustberg, a prominent New Jersey defense lawyer who was asked by the court to weigh in on the matter, said the ruling raises questions about how to apply long-held privacy principles to the digital age.

"People tweet at each other, and they post things on Facebook and they email and text," said . "The way we communicate in the 21st century is being given less protection than the way we communicated in the 20th."

In making their ruling, the appellate judges entered an argument playing out in courts around the country, as the ways in which people talk to each other rapidly shift. The court acknowledged that as communication methods change, law enforcement -- and state law -- has struggled to keep up. 

There's little known about the New Jersey case that prompted the ruling. Because it involves a dispute over a warrant requested by prosecutors in Essex County, the record in the case was impounded.

According to court documents, the Essex County Prosecutor's Office sought warrants for "an extensive list of information and data" from two unidentified Twitter accounts. A judge granted the warrants, but edited them to include only the "visual but not oral component" of any video content shared between the accounts.

The judge found the audio of such videos fell under New Jersey's Wiretapping and Electronic Surveillance Control Act, which would require a separate wiretap order.

Prosecutors appealed the restriction, and the appeals panel asked Lustberg to provide his thoughts in friend of the court briefs.

In a phone interview on Thursday, Lustberg said the "fundamental issue" at play in the case is whether social media chat amounts to an "ongoing conversation" that can be intercepted by police or communications records that are "in storage" and can be accessed later.  

In 1990s terms, Lustberg said, police need only a warrant to get your voicemails, but they need a wiretap order to listen in on your private phone calls. The attorney argued that a private Twitter conversation is more like a phone call than a voicemail because it's ongoing. 

Prosecutors contended that accessing Twitter posts or videos did not amount to an "interception" of data under the wiretap law because the posts are "stored" on the company's servers and typically accessed afterward by police. 

The appeals court sided with prosecutors, reversing the judge's decision to limit access to the audio from the Twitter posts. 

In a statement, Assistant Prosecutor Camila Garces, who argued the case for prosecutors, said communications data warrants "are the appropriate means for gaining access to any post-transmission electronic communication."

Garces said such warrants ensure authorities "can access electronic footprints when conducting a criminal investigation.''

A spokesman for Twitter declined to comment on the decision, referring a reporter to the company's guidelines for law enforcement, which say that it refuses to provide private data to law enforcement "except in response to appropriate legal process such as a subpoena, court order, or other valid legal process."

Data released by the company shows that over a recent six-month period, it received 2,520 legal requests for information in the United States, mostly as part of criminal investigations. Of those, just 76 were in New Jersey. 

Lustberg said because he wasn't technically a party in the case, it was unclear whether he could seek to bring the matter before the state Supreme Court. 

S.P. Sullivan may be reached at ssullivan@njadvancemedia.com. Follow him on Twitter. Find NJ.com on Facebook.

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