September 23, 2009

In order to obtain a wiretap warrant for telephone communications, such warrants must be specific as to the dates and times of execution. Not so with data wiretaps used to monitor internet activity, according to a recent decision of New Jersey's intermediate appellate court. In State v. Finsesmith, the Appellate Division of the Superior Court held that Communication Data Warrants are not subject to date and time limitations.

In the matter of State v. Finesmith, the defendant was accused of distributing child pornography from his home computer to individuals in other states. The defendant claimed the family computer was in a common area of the home and anyone in the home or guests would have access. The defendant lived with his wife and three teenage daughters.

The state sought a CDW to investigate the defendant’s work computer to ascertain whether or not the distribution of child pornography also occurred outside of the home on computers which the defendant had access to. The state requested a one year time limit for the CDW. The Superior Court Judge denied the state’s request. The Appellate Division granted the request.

The Appellate Division held that a CDA warrant required only reasonable grounds that relevant information could be gathered to support the on-going investigation. The court further added that a one-year period of time was not unreasonable based on the fact the defendant’s computer usage was sporadic during this time period and that a shorter period of time would not be indicative of the actual usage.

Kenneth W. Thayer is an associate of Hill Wallack LLP in the Princeton office and a member of the firm's Litigation Division and Workers’ Compensation Practice Group. He represents major self-insured corporations, insurance companies, and clients of third-party administrators in the defense of workers' compensation claims.