Facebook cannot challenge the constitutionality of a search warrant on its users’ behalf prior to the government’s executing the warrant, an appeals court in New York has ruled in a decision that delineates a boundary for Internet privacy.
The ruling follows a lawsuit by Facebook to void 381 search warrants the company received two years ago from the Manhattan district attorney’s office, which obtained then in connection with an investigation into Social Security disability claims by a group of retired firefighters and police officers whom the DA suspected of feigning illness they attributed to the aftermath of the 9/11 attacks.
Upon receiving the warrants, which sought information derived from the users’ accounts, Facebook asked the DA to withdraw the warrants or to strike a provision that directed the company to refrain from disclosing their existence to users whose postings were to be searched. The DA’s office asserted the confidentiality requirement was needed to prevent the suspects being investigated from destroying evidence or fleeing the jurisdiction if they knew they were being investigated.
After the DA declined to withdraw the warrants, Facebook sued to either quash them or compel the DA remove the non-disclosure provision. The trial court sided with the DA and Facebook appealed.
The appeals court affirmed that the legality of the searches could be determined only after the searches themselves were conducted. “There is no constitutional or statutory right to challenge an alleged defective warrant before it is executed,” Judge Dianne Renwick wrote for a unanimous panel of the court’s appellate division in a ruling released July 21. “We see no basis for providing Facebook a greater right than its customers are afforded.”
The constitutional requirement that a warrant can issue only upon a showing of probable cause as determined by a judicial officer helps to ensure the government does not exceed its authority when requesting a search warrant and eliminates the need for a suspect to make a motion to void the warrant before it can be served, the court noted. “Indeed… the sole remedy for challenging the legality of a warrant is by a pretrial suppression motion which, if successful, will grant that relief,” Renwick explained.
According to Facebook, which was joined in the appeal by Google, Twitter, Microsoft and other tech industry firms, the federal Stored Communications Act also gave the company the right to challenge the warrants. But that law, which protects the privacy of email and other communications stored on servers belonging to ISPs, authorizes ISPs to challenge subpoenas and court orders but not warrants obtained from a judicial officer based on a showing of probable cause, the court noted.
Despite its ruling, the court agreed with Facebook that the DA’s serving 381 warrants swept broadly and suggested the users themselves may have grounds for suppression. “Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home,” wrote Renwick. “These bulk warrants demanded ‘all’ communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook users accounts only 62 were actually charged with any crime.”
Through civil liberties groups hoped the appeal might bolster protections for Internet privacy, experts said the ruling makes sense as a matter of law. As Orin Kerr, a professor of criminal procedure at George Washington University Law School who has written extensively about privacy and the Internet, wrote in The Washington Post:
“Think about how this plays out in an old-fashioned home search. If the cops show up at your door with a warrant to search your house, you have to let them search. You can’t stop them if you have legal concerns about the warrant. And if a target who is handed a warrant can’t bring a pre-enforcement challenge, then why should Facebook have greater rights to bring such a challenge on behalf of the targets, at least absent legislation giving them that right?”
Still, “that doesn’t mean the warrants were valid,” added Kerr, who imagined that the defendants themselves seem likely to challenge the sweep of the material seized from their Facebook accounts if they haven’t already.
For its part, Facebook disagreed with the ruling but said the company had not decided whether to appeal. “We continue to believe that overly broad search warrants—granting the government the ability to keep hundreds of people’s account information indefinitely—are unconstitutional and raise important concerns about the privacy of people’s online information,” Jay Nancarrow, a spokesman for the company, told the Times.
The DA’s office noted that the investigation led to the indictment of 134 people and alleged hundreds of millions of dollars in fraud. “In many cases, evidence on [the suspects’] Facebook accounts directly contradicted the lies the defendants told to the Social Security Administration,” Joan Vollero, a spokeswoman for the district attorney’s office, said in a statement.