Facebook Asserts Con Law Rights for Its Users…Interesting

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Cyrus Vance Jr., Manhattan district attorney, used data from Facebook accounts to investigate cases of Social Security fraud. CreditLucas Jackson/Reuters

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 on 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 prevented the individuals from fighting the data requests themselves.

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From State Supreme Court Order:

“Due to the fungible nature of digital information, the ability of a user to delete information instantly and other possible consequences of disclosure, the court ordered the search warrants sealed and Facebook not to disclose the search and seizure to its users.”—Melissa C. Jackson, New York State Supreme Court Justice

From Brief to Appeals Court:

“The Fourth Amendment does not permit the government to seize, examine and keep indefinitely the private messages, photographs, videos, and other communications of nearly 400 people, the vast majority of whom will never know that the government has obtained and continues to possess their personal information.”—Facebook

From District Attorney Memorandum:

“This investigation has uncovered a criminal scheme that has been active for more than 20 years and which in fact predates the founding of Facebook.”—Cyrus R. Vance Jr., Manhattan District Attorney

View Documents in the Case »

The issue has risen repeatedly in court cases. Just before a Manhattan judge lifted the seal on the Facebook case, the United States Supreme Court issued a major decision on similar privacy issues, ruling 9 to 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.

“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 werepressing 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 that 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,” Mr. Kerr said.

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,” he said. “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.”

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