Facebook and the New York district attorney's office are in a bitter
fight over a privacy question that was bound to come up sooner or later
in the digital age: Does a government demand for the entire contents of
hundreds of Facebook accounts amount to an illegal search of people's
digital homes, and can a service provider like Facebook do anything to
stop it?
In confidential legal documents unsealed Wednesday, Facebook
argues that Manhattan prosecutors violated the constitutional rights of
its users last year by demanding the nearly complete account data of 381
people, from pages they liked to their photos and private messages.
When
the social networking company fought the data demands, a New York
judge, Supreme Court Justice Melissa C. Jackson, ruled that Facebook had
no standing to contest the search warrants since it was simply an
online repository of data, not a target of the criminal investigation.
To protect the secrecy of the investigation, the judge also barred the
company from informing the affected users, a decision that also
prevented the individuals from fighting the data requests themselves.
Late
Wednesday, a few days after Facebook filed an appeal on the
constitutional issues, the court unsealed the case, allowing the company
to discuss it and inform the affected users.
The case pits the
Fourth Amendment right to be free from unreasonable searches by the
government against the needs of prosecutors to seek evidence from the
digital sources where people increasingly store their most sensitive
data. Facebook is the world's largest social network, with about 1.28
billion active users worldwide, and it accounted for about 1 of every 6
minutes Americans spent online in December.
The issue has arisen
repeatedly in court cases. The U.S. Supreme Court ruled on one important
principle of digital privacy Wednesday, finding that cellphones are so
vital to people's lives that the police must get a warrant to search
them, just as they would need to do to search a person's home or car.
(Also see: 'Get a Warrant' to Search Cellphones, Rules US Supreme Court)
In
the Facebook case, the information gleaned from the accounts
contributed to the highly publicized indictments in January and February
of more than 130 police officers, firefighters and other civil servants
on charges of defrauding the Social Security system with fake
disability claims. Photos posted on Facebook showed supposedly disabled
people riding personal watercraft, teaching karate, deep-sea fishing and
performing other vigorous activities. Those photos supported other
evidence, like wiretapped conversations, that prosecutors gathered in
their three-year investigation.
"This was a massive scheme
involving as many as 1,000 people who defrauded the federal government
of more than $400 million in benefits," said Joan Vollero, a spokeswoman
for the Manhattan district attorney, Cyrus R. Vance Jr. "The defendants
in this case repeatedly lied to the government about their mental,
physical and social capabilities. Their Facebook accounts told a
different story. A judge found there was probable cause to execute
search warrants, and two courts have already found Facebook's claims
without merit."
Orin S. Kerr, a law professor at George Washington
University who is an expert on digital searches and seizures, said
Facebook was trying to do something unusual in establishing a right for
service providers to challenge a warrant. "The real question is, 'Can
they challenge warrants for their customers?' And I think the answer is
probably not under current law," Kerr said.
Facebook lawyers say
they are continuing to press the fight because they are troubled both by
the vast scope of the district attorney's search warrants and by the
judge's ruling that the company had no legal standing to contest the
warrants on behalf of the affected users.
"It appeared to us from
the outset that there would be a large number of people who were never
charged in this case," said Chris Sonderby, deputy general counsel for
Facebook. "The district attorney's response was that those people would
have their day in court. There are more than 300 people that will never
have that chance."
Sonderby said the district attorney's demand
for data was far larger than anything it had ever received from any
other prosecutor. And Vance's office was unwilling to discuss narrowing
the scope of its requests to be more directly relevant to its
investigation.
The relationship was so chilly, Sonderby said, that
when Facebook pressed its challenge to the warrants, one of the
prosecutors called and threatened to press criminal contempt of court
charges against the company and throw its officials in jail.
"I've never seen anything like it," he said.
Prosecutors
said the investigation was continuing and more indictments could be
coming. The district attorney's office said it had provided Jackson with
evidence to support each of the individual warrants, including
information from wiretaps and documents filed with the Social Security
Administration.
Jackson, in denying Facebook's effort to quash the
warrants, said the government must be granted latitude in searching for
relevant information.
"In the course of a long-term criminal
investigation, the relevance or irrelevance of items seized within the
scope of a search warrant may be unclear and require further
investigatory steps," she wrote.
In its appeal, Facebook disagreed vehemently.
"The
government's bulk warrants, which demand 'all' communications and
information in 24 broad categories from the 381 targeted accounts, are
the digital equivalent of seizing everything in someone's home. Except
here, it is not a single home but an entire neighborhood of nearly 400
homes," Facebook wrote in a brief to the appeals court. "The vast scope
of the government's search and seizure here would be unthinkable in the
physical world."
In a somewhat similar case in 2012, Manhattan
prosecutors issued a subpoena to Twitter, demanding that it turn over a
deleted message that had been posted by an Occupy Wall Street protester.
In that case, a judge ruled that the protester had no standing to
contest the data request. Twitter resisted the request but was
ultimately ordered to turn over the information.
© 2014 New York Times News Service
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