Facebook appeal allowed in New York privacy dispute

Microsoft, Google and some other tech companies are backing Facebook

Facebook's appeal against the collection by law enforcement in New York of bulk user data under a gag order has been accepted.

The appellate division, first department of the New York State Supreme Court ruled Thursday against a government move to dismiss the appeal as well as accepted briefs in support of Facebook filed by some civil rights organizations and tech companies, including Google and Microsoft.

The case has attracted attention as it raises many questions, including about the standing of a service provider to raise the constitutional rights of its subscribers, particularly when the provider is subject to a gag order and cannot inform its subscribers.

Facebook said in June that a New York court directed it to turn over data, including photos, private messages and other information of 381 accounts, as part of an investigation by the New York County District Attorney's office into a disability fraud case.

Of the 381 people whose accounts were covered under the warrants, 62 were later charged in the fraud case, Facebook said.

In its appeal, Facebook is asking for the return or destruction of the data and also wants a ruling on whether the warrants are in violation of the Fourth Amendment to the U.S. Constitution that prohibits unreasonable searches and seizures of property. Referring to the case, the New York Civil Liberties Union has objected to "broad fishing expeditions" by government into personal and social conversations with family and friends with no regard to user privacy.

Facebook also wants the appeals court to rule on whether the gag provisions of the warrants violated the Stored Communications Act and the First Amendment, and whether it has standing to challenge the warrants on behalf of its users. A trial court had ruled in the negative on these issues.

Besides briefs from the NYCLU and the American Civil Liberties Union, the appeals court also granted a motion from Dropbox, Google, LinkedIn, Microsoft, Twitter and Yelp.

A separate motion filed by Foursquare Labs, Kickstarter, Meetup and Tumblr was also accepted. Describing themselves as the "New York Amici," these companies have argued that users should in this type of cases be provided with notice and an independent opportunity to object, as smaller companies may not always be able to afford to litigate each search warrant or court order.

The District Attorney's office and Facebook could not be immediately reached for comment on the court's decision.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is john_ribeiro@idg.com

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