When court records were unsealed in late June showing the Manhattan district attorney had been granted a search warrant to spy on nearly 400 Facebook accounts, it set off waves of discontent among electronic privacy advocates. As the number of these kinds of warrants and subpoenas of social networks and email providers has been on the rise, what’s being done with those account seizures has been the subject of an ongoing battle in the courts.
On Thursday, the New York Civil Liberties Union (NYCLU) and the American Civil Liberties Union (ACLU) were the latest to get involved, filing an amicus brief supporting Facebook’s latest legal appeal to limit law enforcement access to user accounts.
“The warrants directed Facebook to search for and retrieve a vast array of the users’ information, including private messages, chat histories, photographs, comments posted on pages of friends and family and comments by friends and family, and membership lists of groups that they have joined,” the ACLU and NYCLU wrote in the briefing.
During the last six months of 2013, the US government alone asked Facebook to hand over 18,715 accounts. And in about 80 percent of those cases, Facebook complied. Similarly, in 2013, Google was saddled with a whopping 27,477 court and government requests for user data and 42,648 requests for access to entire user accounts.
But in July 2013, the Manhattan District Attorney’s office obtained a search warrant to access 381 Facebook accounts, while also hitting the company with a gag order that left Facebook unable to warn them that their account was being watched. This time, the company appealed and the case is currently pending decision in New York Supreme Court.
Sixty-two of the people whose accounts were spied on were indicted in a disability fraud case, with evidence coming from the Facebook profiles.
When Facebook’s court battle resulted in the gag order being lifted in June, the company notified the users and the media.
“We fought forcefully against these 381 requests and were told by a lower court that as an online service provider we didn’t even have the legal standing to contest the warrants,” Facebook’s Deputy General Counsel Chris Sonderby wrote in the company’s June announcement of the case. “We complied only after the appeals court denied our application to stay this ruling, and after the prosecutor filed a motion to find us in criminal contempt.”
'To have a gag order that’s unlimited violates the first amendment.'
In the statement, Facebook, which gets requests for account data constantly, said it had filed the brief against the Manhattan DA’s “sweeping warrants” as part of its efforts to get the government to return the data it had seized.
A Facebook representative told VICE News that a slew of Silicon Valley strongholds have also filed amicus briefs in the appeal against the District Attorney, including Google, LinkedIn, and Twitter. The representative said Facebook is not currently commenting further on the case.
NYCLU’s lead attorney for the amicus brief, Mariko Hirose, told VICE News the fact that the government requested data, isn’t so much the concern. "It’s about the scope of the warrant and the gag order,” he said.
“The gag order that the District Attorney got in the lower courts was indefinite. And that’s a problem,” Hirose said. “To have a gag order that’s unlimited violates the first amendment.”
Without a gag order preventing a company from notifying its users, account holders could potentially erase everything before it could be examined for evidence.
A Twitter representative told VICE News the company’s policy is to “notify users of requests for their account information, which includes a copy of the request, prior to disclosure unless we are prohibited from doing so." A gag order, however, would prevent this.
According to the 1986 Stored Communications Act, government or law enforcement can get a warrant to seize any electronic communications without the user being notified, including personal information tied to the account like home address, telephone number, bank accounts, and credit cards.
Critics say the communications act often clashes with the fourth amendment, which gives US citizens rights “against unreasonable searches and seizures” and mandates probable cause as a precursor to search warrants.
“We’ve gone to court and repeatedly asserted that these overly broad warrants — which contain no date restrictions and allow the government to keep the seized data indefinitely — violate the privacy rights of the people on Facebook and ignore Fourth Amendment safeguards against unreasonable searches and seizures,” Sonderby wrote in the June Facebook announcement.
'It’s important to protect from the government rummaging through all the private, expressive material.'
The line between a constitutional search warrant and a violation of the fourth amendment is drawn out in the amicus brief filed by the civil liberties unions. According to the brief, a “particularity requirement” mandates that a warrant specifically describe the exact place to be searched or a list of things to be seized. According to the brief, that requirement is designed so the government cannot “rummage through someone’s personal effects.”
In June, the US Supreme Court decided in a similar case that police need to procure warrants to search the cell phones of people they search or arrest. In the Riley v. California decision, the Supreme Court found that smartphone searches could provide police with far more data about a person than by searching their entire home. Facebook and its advocates are now arguing that government’s rummaging through social media accounts could lead them to even more of one’s personal effects.
“One electronic account contains so much personal information,” Hirose said. “Facebook accounts are used as diaries, letters, photo albums, and there are so many ways we store private information in these accounts. It’s important to protect from the government rummaging through all the private, expressive material.”
Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation (EFF), told VICE News that court decisions are slowly starting to sway in the direction of favoring privacy rights and the fourth amendment. Fakhoury said among the types of requests for information, subscriber data, like addresses and credit card numbers often found in sign up forms, is the “least protected.” He said it’s harder for the government to get its hands on actual content, like emails and messages, without getting a search warrant.
According to Farkhoury, a single search of a social media account could potentially implicate a lot more people than just the one that officials have the warrant for, simply by virtue of their online interactions.
“If the cops get a search warrant to look for drugs in your house, and they are in their house and find a sawed off shotgun, they can seize that. And even if that gun belongs to someone else, then they can get a warrant for that guy,” Fakhoury explained. “It’s the same in the digital world. If cops are searching Facebook chats, and the suspect is communicating with someone who says ‘I just murdered my wife,’ they can go and get a warrant for that person.”
Follow Mary Emily O’Hara on Twitter: @maryemilyohara
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