Social Media Law: NY high court to rule on Facebook and warrants

Can Facebook and similar entities protect user data from sweeping government searches? On Tuesday, the New York Court of Appeals hears oral argument on this issue in the case of In re 381 Search Warrants Directed to Facebook, Inc. I detail the major issues below. You can watch the arguments live on the Court of Appeals website (scheduled for 2 p.m.) and briefs are available via the CourtPASS system.

The case arose from an investigation into a scheme to defraud Social Security. As part of its investigation, the New York County District Attorney sought and received 381 identical search warrants for 381 Facebook accounts, the largest set of search warrants Facebook has ever received. The search warrants were supported by a 93-page affidavit from a police investigator. The affidavit was unsealed but a copy has not been produced for Facebook despite demands.

The search warrants requested extensive account information including: Facebook chats, wall posts, undeleted or saved photos, login information and many more details. Additionally, a gag order prevented Facebook from discussing the warrants or notifying customers.

As a result of the investigation 134 people were indicted. Sixty-two of those indicted were among the 381 account holders subject to the warrants; the remaining 319 account holders were not indicted. There is no indication whether the account data collected will eventually be destroyed or kept indefinitely.

Facebook attempted to object to the warrants, but was rebuffed by the trial court. On appeal, the First Department unanimously held for the district attorney. The court stated there was no constitutional or statutory right to challenge a warrant pre-execution. It also rejected Facebook’s argument that the Stored Communications Act (SCA) created a right for Facebook to object to the warrants. The First Department emphasized:

“Facebook cannot have it both ways. On the one hand, Facebook is seeking the right to litigate pre-enforcement the constitutionality of the warrants on its customers’ behalf. But neither the Constitution nor New York Criminal Procedure Law provides the targets of the warrant the right to such a pre-enforcement challenge. On the other hand, Facebook also wants the probable cause standard of warrants, while retaining the pre-execution adversary process of subpoenas. We see no basis for providing Facebook a greater right than its customers are afforded.”

At the Court of Appeals, the parties (and 15 amici) raise strongly contrasting arguments. Facebook argues it has the right to challenge the warrants under the SCA and New York law. It also asserts the bulk warrants violate the Fourth Amendment and that the gag provision violates both the SCA and the First Amendment.

The district attorney asserts the court lacks jurisdiction to hear the appeal as there is no applicable appeal procedure in the Criminal Procedure Law. Moreover, the district attorney argues Facebook lacks standing to assert customers’ rights.

As mentioned above, oral argument will be available on the Court of Appeals website. Topics to keep an eye on:

1. Insight into the immediate procedural issues versus constitutional claims.
2. What attention, if any, is given to the 319 account holders whose data was seized (and presumably is still being held) but who were not indicted? In practical terms, it seems unlikely any of them would pursue civil remedies or easily be able to compel the district attorney to delete the data.
3. How the Court of Appeals understands and approaches the unique legal aspects of technology, online accounts and social media.

In addition to the legal issues above, the sheer numbers presented by this case make it important: 381 warrants; 529 pages of motions and briefs; 262,000 technology/information sector-related jobs in New York City that may be affected; and the online data of millions of New Yorkers. These issues may soon come to a screen near you.

Scott Malouf is a social media attorney. He helps litigators turn social media into court-ready evidence, reduce the cost of social media discovery and develop legal strategies and theories based upon social media use by parties. He also assists organizations using social media to meet key goals while minimizing legal risks, such as potential copyright violations or employment law concerns. He can be contacted via his website (www.scottmalouf.com), LinkedIn or Twitter (@ScottMalouf).