XXV. COST REIMBURSEMENT (N.J.S.A.
2A:156A-31)
A law enforcement agency obtaining the contents of
communications, records, or other information under
N.J.S.A. 2A:156A-28, 2A:156A-29, or 2A:156A-30,
shall reimburse the person or provider for costs and which
have been directly incurred for searching, assembling,
reproducing, and otherwise providing information, as
well as the costs due to the necessary disruption of normal
operations of any electronic communication or remote
computing service in which the information may be
stored. N.J.S.A. 2A:156A-31a. The amount of
reimbursement can be mutually agreed upon by the law
enforcement agency and the service provider, and in the
absence of an agreement, by the court. N.J.S.A.
2A:156A-31b. This section does not apply to records or
other information maintained by a provider of wire or
electronic communication service which relates to
telephone toll records and telephone listings obtained
pursuant to N.J.S.A. 2A:156A-29, unless the court
determines that the required information is voluminous
or causes an undue burden on the provider. N.J.S.A.
2A:156A-31c.
XXVI. CIVIL ACTION AND DAMAGES
(N.J.S.A. 2A:156A-32)
Except as provided in N.J.S.A. 2A:156A-29d, any
service provider, subscriber, or customer, aggrieved by
any violation of N.J.S.A. 2A:156A-27 to 30, may recover,
in a civil action, from the person or entity which
knowingly or purposefully engaged in the conduct
constituting the violation. N.J.S.A. 2A:156A-32a.
Appropriate relief may include the following:
- Preliminary and other equitable or declaratory
relief; - Actual damages suffered by the plaintiff and any
profits made by the violator as a result of the violation, but
in no case shall a person entitled to recover receive less
than $1,000; and - Attorney fees and litigation costs. N.J.S.A.
2A:156A-32b, c.
A civil action under this section may not be
commenced later than two years after the date upon
which the claimant first discovered or had a reasonable
opportunity to discover the violation. N.J.S.A. 2A:156A-
32d.
However, pursuant to N.J.S.A. 2A:156A-33, it shall
be a complete defense to any civil or criminal action
brought pursuant to N.J.S.A. 2A:156A-27 to 30 and
2A:156A-32, that the person made a good faith reliance
on the following:
- A court warrant or order, legislative authorization,
or a statutory authorization; - A request of an investigative or law enforcement
officer under N.J.S.A. 2A:156A-13; or - A good faith determination that N.J.S.A.
2A:156A-4 permitted the conduct which is the subject
of the complaint.
XXVII. THE FEDERAL WIRETAP ACT
A. History-Purpose
Following the United States Supreme Court
decisions in Katz v. United States, 389 U.S. 347, 88 S.Ct.
507 (1967) and Berger v. New York, 388 U.S. 41, 87 S.Ct.
1873 (1967), the Omnibus Crime Control and Safe
Streets Act of 1968 (codified as amended by the
Electronic Communications Privacy Act of 1986, 18
U.S.C. § 2510, et seq., and also known as the Federal
Wiretap Act) was passed, thereby creating a limited
system of wire surveillance and electronic eavesdropping
within the framework of the Fourth Amendment and the
guidelines of Katz and Berger. State v. Minter, 116 N.J.
269, 274-75 (1989). The Federal Wiretap Act applies
to any interception of a telephone call, regardless of
whether parallel state legislation has been enacted. State
v. Fornino, 223 N.J. Super. 531, 543 (App. Div.), certif.
denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109
S.Ct. 152 (1988) (citing United States v. Smith, 726 F.2d
852, 860-61 (1st Cir.), cert. denied sub nom., Torres v.
United States, 469 U.S. 841, 105 S.Ct. 143 (1984)); see
also State v. Minter, 116 N.J. at 274 (“Federal wiretap law
is paramount; it binds federal and state officials alike,
setting a threshold that may not be lowered”).
Nonetheless, the New Jersey Wiretapping and Electronic
Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., was
modeled after the Federal Wiretap Act, and is in some
respects, more restrictive than the federal legislation.
State v. Fornino, 223 N.J. Super. at 544.
B. Construction
In United States v. New York Telephone, 434 U.S. 159,
165-68, 98 S.Ct. 364, 369-70 (1977), the United States
Supreme Court held that pen registers, which are