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Facebook Loses Appeal

An appeals court in New York affectively changed the status of Facebook’s attempt to contest search warrants on behalf of its customers. The social media giant, founded in 2004, lost an appeal in a Manhattan courtroom on Tuesday in a decision highly anticipated by privacy advocates.

Facebook argued that in storing their customers’ photos and files, they have a right to challenge search warrants they deem unnecessary. Since Facebook would have to perform the task of searching for and delivering the information to law enforcement, the company reasoned these are unlike traditional warrants where police search a home, office, or other physical property themselves. The company, which has over 1.4 billion users, based its argument on the federal Stored Communications Act, which was enacted as part of the Electronic Communications Privacy Act, and the Fourth Amendment protecting citizens against unlawful search and seizures. The SCA states in part:

“A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.”

Unanimous Decision

The panel of five judges ruled against Facebook’s argument, saying the act only allows third parties to contest subpoenas and court orders, not search warrants. Individual defendants, however, may contest search warrants under the SCA.

Other social media companies like Microsoft, Pinterest, Twitter and Google wrote amicus briefs in the case. At issue are 381 warrants signed two years ago ordering Facebook to turn over photos and communications to investigators looking into fraud among New York City firefighters and police officers. The evidence was used to charge over 130 of these firefighters and police officers with social security disability fraud in excess of $400 million in benefits. This includes those claiming illness as a result of the terrorist attacks of September 11, 2001. Images of these “disabled” defendants engaging in such activities as martial arts, golfing, and water sports posted to Facebook were used to charge them with fraud. Only 62 people were charged with a crime, and nearly $25 million in restitution has been recovered from those found guilty.

Broad Strokes

The appellate panel was not pleased with the large net that was cast to obtain charges against the 62 defendants, who were among a group indicted in 2014. The affidavit was never made public, and only 16% of those whose records were searched were charged. Facebook lawyers argued that the warrants were too burdensome to execute, too broad and included not only possibly incriminating pictures, but also what they consider non-relevant information such as religions, sexual orientations, family members and “private” messages.

One concern among those supporting the social media companies’ viewpoint, is that customers’ data is reported to law enforcement via search warrants before the consumer has a chance to defend it. The court ruled that defendants have the right to try and suppress evidence they believe may have been obtained unconstitutionally before the trial begins.

For Your Eyes Only?

Others believe that customers are a little too willing to post personal information online. In 2012, a federal judge, also in New York, ruled that all claims of privacy are invalid when photos, messages, and communications are shared online. A witness in the case was one of the defendant’s Facebook “friends” who gave the prosecution access to his profile. Just last year in New Jersey, a federal judge ruled in favor of law enforcement creating fake social media accounts with the sole purpose of searching through the accounts of suspects.

A spokesperson for Facebook says the company is still considering its legal options following this latest decision. The company released a statement saying, “We continue to believe that overly broad search warrants — granting the government the ability to keep hundreds of people’s account information indefinitely — are unconstitutional and raise important concerns about the privacy of people’s online information.”

Summary

Facebook lost an appeal in a New York court this week. Manhattan prosecutors had issued 381 search warrants to Facebook for photos, messages, and data from former city workers suspected of social security fraud in excess of $400 million. The judges made a unanimous decision that the company cannot shield its users’ data from search warrants by law enforcement.

CIPP Exam Preparation

In preparation for the Certification Information Privacy Professional/United States (CIPP/US) exam, a privacy professional should be comfortable with topics related to this post, including:

Government and Court Access to Private-sector Information (III.A.b.2.)

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