Facebook and the Manhattan district attorney's office are in a
bitter fight over the government's demand for the contents of hundreds
of Facebook accounts.
In confidential legal documents unsealed
Wednesday, Facebook argues that Manhattan prosecutors last summer
violated the constitutional right of its users to be free of
unreasonable searches by demanding nearly complete account data on 381
people, ranging from pages they had liked to photos and private
messages.
When the social networking company fought the data
demands, a New York judge 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.
The case, which is on
appeal, 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.
The issue has risen repeatedly in court
cases. Just before a Manhattan judge lifted the seal on the Facebook
case, the U.S. Supreme Court issued a major decision on similar privacy
issues, ruling 9-0 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.
(Also Read: Facebook: New York Prosecutors Got Data on 381 Users)
"In that case, they were talking
about how revealing the information could be on a cellphone. You could
make a similar point about people's social media profiles," said Kurt
Opsahl, deputy general counsel of the Electronic Frontier Foundation, a
nonprofit group that promote digital civil liberties.
Lawyers for
Facebook, which has about 1.28 billion active users worldwide, said they
were pressing the fight in the appellate courts because they were
troubled both by the vast scope of the district attorney's search
warrants and by the judge's ruling that Facebook could not challenge the
warrants.
Prosecutors say 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
pursuing 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.
Chris Sonderby, deputy
general counsel for Facebook, said that if Facebook could not challenge
the warrants and the users remained in the dark, no one would ever get
the chance to object to the possible invasion of privacy.
"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.
The
district attorney's office said that about 600 possible suspects have
been identified, and the investigation was continuing. Prosecutors said
they had provided Supreme Court Justice Melissa C. Jackson with a
93-page affidavit with evidence to support each of the individual
warrants, including information from wiretaps and documents filed with
the Social Security Administration. They also maintain almost everything
in the Facebook pages was relevant, since the people targeted in the
investigation were faking mental illnesses to obtain benefits and had
claimed to be too sick to leave the house, travel or work.
Jackson, in denying Facebook's effort to quash the warrants, said the government must be granted latitude.
"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.
(Also Read: Facebook Battles Manhattan DA Over Warrants for User Data)
"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.
Lee Rowland, a
lawyer with the American Civil Liberties Union, said the breadth of the
search warrants, which had no time limits or any limits on topics, was
troubling. It strains belief, she said, that every posting, picture and
message in the Facebook files turned over to the state were necessary to
the case.
"It's incredibly important in the digital context to prevent government fishing expeditions," she said.
© 2014, The New York Times News Service 
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