Can Cops Poke Into Your Facebook Stuff?

Category: Privacy

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.
Facebook Privacy - Warrants

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…

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Most recent comments on "Can Cops Poke Into Your Facebook Stuff?"

Posted by:

Sarah L
27 Jul 2015

Of course it would be for those pernicious insurance suits against disabled people desperate for income when they cannot work at any job in the US economy, and have to fight, while ill, to get some money to live. A dirty business, by cynics who think there is something desirable about being disabled. Important, too, to remember that facebook messages are visible only to the person you sent it, but all those messages are visible to the police and insurance companies. Sobering thoughts.

Posted by:

27 Jul 2015

sounds like facebook is simply engaging in more spin, as you suspect.

Posted by:

Joshua Kara
27 Jul 2015

I have watched our rights be slowly stripped in the name of security for awhile now. I actually was under the impression this was already taking place. I was denied a position with my local police department a few years back because I was told that a a public position was a glass window and my Facebook account had a close friend who was a musician "rapper". The position was denied at the second interview due to my social media content. It's a shame it has come to this.

Posted by:

27 Jul 2015

So much on facebook is exaggeration anyway...It's a place for some folks to shamelessly brag about things they do; don't do; and usually know nothing about. The use of facebook has drifted so far from the usual/original intention.

Posted by:

27 Jul 2015

If you do not want information to be public, don't post it online. If it is online, anybody can hack it, or copy it a million times(including this comment).

Posted by:

Michael D.
27 Jul 2015

Hi Bob. I get the feeling you're leaning toward Facebook being not so unwitting in this matter. If so, I agree with you. If FB has such lame counsel why should we entrust them with a bit of our data? I haven't liked FB from the beginning, when they were difficult to use, not supportive, and generally secretive and obscure. And they've only been getting worse since! There's a reason they're free: they're making money secretly mining & marketing our data! I don't trust FB as far as I can pick them up and throw them. But then again, I feel generally the same way of law enforcement. So...

Posted by:

teri rudnick
27 Jul 2015

So where is the persons of the FB account warrant. Why is face book being served? You serve the person and then FB is forced to give the access called for in the warrant. They have to have probable cause for a warrant. Why is this end run around the person and their rights not being fought?

Posted by:

27 Jul 2015

I understand the law part of this but I don't buy into Facebook's part. We don't have enough privacy with Facebook or any other social media!

Posted by:

27 Jul 2015

Don't post really personal stuff. What I post I don't care who looks at them. Facebook is a tool. Not good, Bad or Evil.

Posted by:

Rocky Perkins
27 Jul 2015

I can't believe that anyone still believes that there is "privacy" in America today. Especially not on Facebook. Every form of electronic, telephonic, financial, personal, social media, and written communication is subject to being intercepted and read by someone other than who it was directed at. It is the price we pay for living in the digital age! Instant communication devices are hacked everyday. Even if you live off the grid, drones can fly over your house and snoop in on your conversations and photograph you. Thank God they cannot yet read our thoughts--but that is probably coming.

Posted by:

Lee I
27 Jul 2015

I have no expectation of privacy on social media and don't think anyone should.

Posted by:

Jay R
27 Jul 2015

I can't buy it, either. And the price is right.

I cannot agree with Sarah. What she has posted is only a partial truth. There are many that deliberately do everything in their power to get a check when they could work. There are those, as she accurately says, that are, in fact, incapable of gainful employment. To err by supporting one end of this spectrum (people receiving disability benefits) while denying the existence of the others is an error. We should help our fellow man, it is expected, but there is no obligation to support our fellowman's laziness and bad habits.

Posted by:

27 Jul 2015

Excellent and thought-provoking article al always. Thanks, Bob

Posted by:

27 Jul 2015

I am constantly amused by some people who look at Facebook as if it is inherently evil. Just like another US corporations, the primary purpose is to make money and not as an altruistic charity organization. It would serve corporations no good in the long run if they lose their customers' trust because customers themselves are looking out for their own self-interests too and always vote with their feet to find other things for free-loading, LOL.

Posted by:

27 Jul 2015

And that is precisely why I don't have a Facebook account.

Posted by:

top squirrel
27 Jul 2015

I've never had a Facebook (or other social media) account and never felt the need for one, although I can see if one does feel the need, one should be sensible about what one reveals. That is, if you put any value on your privacy.
How hard is that?
Send them a message. Vote with your feet. Cancel your Facebook account.
The search for connection need not require you to let it all hang out.
Not even your friends need to know all your business.

Posted by:

27 Jul 2015

Oh come now, Bob. Surely you're not suggesting that Facebook is a cynical, profiteering organisation? Next you'll be suggesting that the D.A. involved is a self-serving, re-election seeking, publicity-mad egoist with no regard for your constitution.....

Posted by:

28 Jul 2015

I never have - and never will, use Facebook, Gmail, Yahoo, Twitter, LinkedIn or Dropbox!!

Posted by:

28 Jul 2015

One way to consider this is: You [or a policeman] looks in a window, and you see a bloody body on the floor. If you're absolutely certain that the body is dead, then you have probable cause for a search warrant.[If you believe you can render aid -not dead- you must break the window to get inside to help the person. In a similar vain, if you hit someone with your car, you must stop to try to render aid. Otherwise, it is a hit-and-run. These are physical events, not electrons in the ether. Maybe this - maybe that. Whatever, don't be stupid and post things that may come back to bite you!

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