Does Facebook Have the Right to Challenge Search Warrants Seeking Facebook Users’ Data? New York’s Highest Court Hears Argument

by Patterson Belknap Webb & Tyler LLP

Facebook is the latest social media giant to push back on law enforcement efforts to seek user information.  On Tuesday, the New York Court of Appeals heard oral argument in a case focusing on whether Facebook has the right—or legal standing—to challenge bulk search warrants issued by the Manhattan District Attorney’s office for its users' data.  The case is In re 381 Search Warrants Directed to Facebook, Inc. and Dated July 23, 2013.

The dispute arose after the Manhattan D.A.’s office, which was investigating a large disability benefits fraud, obtained warrants commanding Facebook to comprehensively search the accounts of 381 Facebook users, including their friends, posts, private messages, and photographs.  The warrants also barred Facebook from disclosing their existence to the users.  Facebook filed a motion before the trial court to quash the warrants, challenging both their breadth and the nondisclosure requirement.  The D.A. defended the need for the secret warrants, and also questioned whether Facebook, which was not a target of the investigation, had standing to contest the warrants. 

The trial court denied Facebook’s motion, and the D.A. ultimately indicted 62 of the targeted Facebook users—relying in part on those user’s Facebook photos.  As the New York Times noted, former police officers who were collecting disability on the grounds that they were “too mentally scarred to leave home” had posted photos to Facebook of themselves flying helicopters and playing sports.

Facebook appealed to the First Department, which also sided with the D.A.  The panel held that neither a defendant nor any other party can move to quash a warrant before it is executed.  It also rejected Facebook’s argument that the warrants were more akin to subpoenas, as well as Facebook’s contention that the Stored Communications Act (the “SCA”), a 1986 law, allows Internet service providers to contest such warrants.  More broadly, the panel questioned whether computer-stored information and records “are sufficiently like other records to engender the ‘reasonable expectation of privacy’ required for Fourth Amendment protection.”

At oral argument, Facebook contended that it has standing to contest the warrants under the SCA because assisting in an unconstitutional search of its users’ data is an “undue burden” under the statute.  Facebook also renewed its analogy to a subpoena, and emphasized how sweeping these warrants were:  the data of hundreds of users—most of whom were never charged with a crime—including not just their photographs but also their private conversations and other intimate personal details.  Facebook concluded by warning that following the D.A.’s “chilling” logic, the “entire digital lives of every person in New York City” could be seized without recourse. 

The Court of Appeals’ ruling could have significant implications for how law enforcement collects and handles information contained in individuals’ social media accounts.  We’ll continue to follow this case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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