Facebook appeal over New York search warrants fails

The 381 warrants for information on user accounts were coupled with gag orders

Facebook’s appeal against 381 warrants for information from the accounts of its users was rejected by a New York court on the ground that earlier orders refusing to quash the warrants issued in a criminal proceeding could not be appealed.

The decision by the New York State Court of Appeals did not address key issues of whether the broad searches were unconstitutional, and whether internet service providers like Facebook have standing to challenge such warrants on behalf of their users, particularly when they are served with ‘gag orders’ that prevent providers from informing subscribers about the warrants.

“This case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizure, and the parameters of a federal statute establishing methods by which the government may obtain certain types of information,” wrote Judge Leslie E. Stein, writing for the majority.

The judge added that the court was constrained by state law to affirm the Appellate Division’s order. “We have no occasion to consider, and therefore do not pass on, the merits of the parties' arguments regarding Facebook's standing to assert Fourth Amendment claims on behalf of its users, whether an individual has a reasonable expectation of privacy in his or her electronic communications, the constitutionality of the warrants at issue, or the propriety of the District Attorney's refusal to release the supporting affidavit,” she wrote.

A number of technology companies including Google, Twitter and Microsoft, and civil rights groups like the New York Civil Liberties Union and the American Civil Liberties Union have backed Facebook in this long-drawn dispute. The NYCLU has objected to what it described as “broad fishing expeditions” by government into personal and social conversations with family and friends with no regard to user privacy.

Manhattan prosecutors had obtained the search warrants issued by the New York Supreme Court under the Stored Communications Act in July 2013, which sought subscriber information and content for a criminal investigation into a Social Security disability fraud case. Facebook challenged the warrants, which it said were overbroad, and it was not allowed to inform the affected users.

The New York Supreme Court asked Facebook to immediately comply with the warrants, after it ruled that Facebook lacked standing to assert any expectation of privacy or Fourth Amendment claims against unreasonable searches and seizures on behalf of account holders, and also rejected Facebook's challenge to the nondisclosure clauses of the warrants on the ground that disclosure of the warrants to the subscribers would put the ongoing criminal investigation at risk.

Facebook appealed the Supreme Court's order, and sought a stay pending resolution of its appeal. After the Appellate Division denied Facebook's application for a stay, it complied with the warrants and provided the requested data, which led to 63 account holders being charged in the disability fraud. The Appellate Division order was on Tuesday upheld by the Court of Appeals.

“We’re disappointed by the court’s ruling, but we are encouraged to see the thorough dissent that supports Facebook’s position arguing for people’s online privacy,” Facebook said in a statement. “We are grateful to the many organizations that joined us in challenging these overbroad warrants, and we are continuing to evaluate our options because we believe strongly in the issues underlying this case.”

A key issue before the appeals court was whether the orders served on Facebook for customer information should be treated as a warrant, largely associated with criminal procedures and with search and seizures by law enforcement, or as a subpoena, which requires the service provider to provide the information.

Facebook asked the appeals court to treat the Supreme Court's first order denying its motion to quash the warrants as an appealable order denying a motion to quash subpoenas, but Judge Stein found the argument “unpersuasive.”

Dissenting Judge Rowan Wilson wrote that a warrant under the SCA operates more like a subpoena than like traditional search warrants, as it compels third parties like Facebook, who are not the targets of the investigation, to put in resources for producing the documents.

Section 2703 (d) of the SCA  gives service providers standing to move a court to modify or quash an order, "if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider."

“Compelling a company to disclose the private information of its customers may tarnish its brand or alienate its current or future users, which could constitute an undue burden when evaluated against the scope of the request and its potential benefit to the prosecutor,” wrote dissenting Judge Wilson. But the majority opinion was that the move to modify the order would have to be in the same court that issued the order without specifying an express right to appeal.

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John Ribeiro

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