Just as Congress prepares to rubber-stamp surveillance legislation (CISA), privacy was dealt another blow by a New York appeals court which ruled against Facebook in a case fraught with implications for Internet privacy. Upholding a lower court decision, the five-judge panel in Manhattan said that under state and federal law only a defendant can challenge a search warrant, and it must be done during a hearing before trial. At that point, defendants can move to have evidence thrown out as the fruit of an illegal search.
In short, a warrant cannot be challenged before it is executed, which on the face of it seems odd- akin to trying to put the toothpaste back in the tube once squeezed out. The ruling did not preclude the possibility of an individual defendant challenging a warrant subject to a pre-trial hearing. Facebook had been contending it had standing in challenging illegal searches of its customer’s files.
The case — known formally as “In Re 381 Search Warrants Directed to Facebook Inc.” — has been closely watched as a test case by civil libertarians and other social media companies. Several tech giants, including Google, LinkedIn and Twitter, have filed amicus briefs. So has the New York Civil Liberties Union.
Facebook had been ordered to turn over information in the accounts of 381 people, including private photos and conversations which were to be then used against the customers to obtain indictments for disability fraud against these public employees. Moreover, FB was not even allowed to alert its customers that they were targets of searches. A third of the defendants have pleaded guilty.
“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,” said FB spokesman Jay Nancarrow. As might be expected, Manhattan district attorney, Cyrus Vance Jr defended the warrant requests and searches citing probable cause that the defendants were engaged in suspicious activities when they were supposed to be disabled. But many were not charged with fraud. That the court decided against FB but had problems with the broad scope of the hundreds of requests is troubling for legal scholars and may provide grounds for a reversal at a higher level.
“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,” the presiding judge Dianne Renwick wrote. “Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home.”
Perhaps this should be a cautionary tale for social media users eager to share their every word and intimacy online. Of course, that realization would be financially damaging to social media companies such as FB, hence their opposition and action regarding the warrants. It will be interesting to hear and see how vocal they are about the upcoming CISA legislation before Congress which, on the face of it, has them colluding with the very government agencies they sought to thwart in this court action.