Can Cops Poke Into Your Facebook Stuff?
Facebook just lost a court challenge that would have prevented police and other law enforcement officials from rummaging through the information that users post on their social media accounts. Is Facebook now a champion of privacy rights, or is something else going on here…?
Facebook Loses Challenge of Search Warrants
A New York State appeals court denied Facebook’s latest effort to challenge search warrants on behalf of its users. The 5-judge panel ruled that under state and federal law, only defendants can challenge the validity of search warrants, and only at a hearing before trial.
The case involved 381 search warrants served upon Facebook by Manhattan district attorney, Cyrus R. Vance Jr. They were served in furtherance of his office’s investigation of disability benefits fraud. The warrants sought nearly all data that Facebook has on their targets: photos, posts, pages they liked, and private messages. Investigators were looking for evidence that people claiming to be disabled were, in fact, living normal lives.
The warrants were signed in 2013 by Justice Melissa Jackson on the strength of a 96-page affidavit of probable cause submitted by the DA’s office. Jackson ordered Facebook to provide the data specified in the warrants to investigators, and also ordered Facebook not to inform any of the targeted users of the searches.
The 381 warrants produced enough evidence to indict 130 police officers and other public employees. Any major leaguer would love a .341 batting average, but in legal matters, that’s pretty low.
As former New York chief judge Sol Wachtler famously said in a 1985 interview with the New York Daily news, prosecutors wield so much influence over grand juries that they can get one to “indict a ham sandwich.” Ultimately, only 62 of those indicted were charged with fraud. (That lowers the "batting average to .163, and makes it look more like a fishing expedition.)
They Fought the Law, And the Law Won
Even though the appeals court unanimously upheld the warrants as lawful, Judge Dianne T. Renwick wrote in the panel’s opinion:
“Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the district attorney’s alleged right to indefinitely retain the seized accounts of the UNCHARGED Facebook users… Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home.”
But she concluded, “There is no constitutional or statutory right to challenge an allegedly defective warrant before it is executed.”
Facebook argued that search warrants served on it and other firms that store users’ digital data are more akin to subpoenas, which can be challenged before they are executed. After all, Facebook argued, investigators didn’t actually search anything; they demanded that Facebook deliver specified data to them, which is what a subpoena does.
Unfortunately, that did not fly with the court. While the panel acknowledged that subpoenas and other court orders COULD be challenged by Facebook before they are executed, search warrants CANNOT. District Attorney Vance’s spokeswoman, Joan Vollero, noted that the appellate court was the third court “to deny Facebook’s efforts to block lawful evidence gathering.”
Facebook: The New Privacy Champion?
Let us pause to reflect on that for a moment. Facebook, which has pushed the boundaries of users’ privacy to new limits and earned a reputation for intrusiveness, has fought three legal battles to keep law enforcement from invading users’ privacy. Wow. I wonder why.
We should also wonder why Google, LinkedIn, and Twitter joined the New York Civil Liberties Union in filing amicus briefs supporting Facebook’s challenge of search warrants.
Perhaps these companies and others are worried that users may balk at storing their personal data on the companies’ servers if it becomes common knowledge that law enforcement can search that data unbeknown to the users. That would be very bad for data-mining, targeted advertising, and basically the whole social media economy.
But will you or anyone else stop using Facebook, Gmail, Yahoo, Twitter, LinkedIn or Dropbox for fear of secret search warrants? Are Facebook, Google, et. al., sincerely defending users’ privacy? Their business models? Is this case just a costly legal PR stunt? Probably some combination of the three is accurate.
On the one hand, it's good to know that at least a warrant, supported by probable cause affidavits and approved by a judge, is required for the authorities to poke into your social media accounts. But on the other...
I find it hard to believe that Facebook’s lawyers “misinterpreted” the federal Stored Communications Act, which allows Facebook to challenge subpoenas and court orders but not search warrants. It makes more sense to me that Facebook knew it was going to lose this case going into it. But here we are, with Facebook – FACEBOOK! – looking like a bravely battered champion of users’ privacy!
I can’t buy it. How about you? Your thoughts on this topic are welcome. Post your comment or question below…
This article was posted by Bob Rankin on 27 Jul 2015
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