New York Appeals Court Says Facebook Can't Challenge The 381 Broad Warrants Handed To It By New York Prosecutors
from the no-standing-and-no-remedy dept
Almost four years ago, Manhattan DA Cyrus Vance's office issued 381 warrants seeking information on Facebook subscribers. The warrants arrived almost immediately after the first Snowden leaks, which quite possibly pushed Facebook towards challenging the multitude of overbroad warrants.
Once the gag order was lifted, Facebook was able to reveal the astonishing breadth of the DA's demands. Hoping to dig up info on participants in a disability fraud scheme -- one that had already resulted in the arrests of more than 100 former police officers and firemen -- the 381 warrants demanded everything Facebook had on the named accounts, including private messages, Friends lists, and a variety of non-public content.
Facebook spent the next three years fighting the warrants in New York courts. It hasn't gone particularly well. There's the issue of standing, which few courts are willing to grant to third parties seeking to protect the privacy of their subscribers and users.
The case has reached the top of the New York judicial system, and the result is a loss for both Facebook and its users. The state's top court has rejected Facebook's appeal on procedural grounds, saying the company lacks standing to challenge the warrants. According to the court, it's up to individual users to challenge the validity of the warrants, something they can only do after the warrants have been served and fulfilled.
Facebook sought to have the warrants treated as subpoenas, which would have given it a bit more standing to challenge prosecutors' demands. It pointed out the warrants used by Vance's office more resembled subpoenas, as they weren't deployed by law enforcement to perform a search of the target's residence/papers, but rather served to a third party to demand digital data. A subpoena would be challengeable by Facebook, seeing as it's both the target and the recipient.
The lower court didn't find this persuasive and neither does the New York Supreme Court. From the decision [PDF]:
[A]n SCA warrant compels a third party -- here, Facebook -- to compile and turn over digital data under its control, and the presence of a law enforcement officer is not required for service or execution of the warrant. A traditional search warrant, by comparison, authorizes law enforcement to enter, search, and seize property. These differences in execution, however, can be easily explained by the nature of the material sought. The service provider is more likely to be better equipped to access and conduct a search of its own digital information than law enforcement personnel, and the data may be stored in different locations. Thus, the framework of execution for SCA warrants ensures efficiency and minimizes intrusion into the provider's business while promoting and protecting legitimate law enforcement interests in criminal investigation.
Despite the minor similarities between SCA warrants and subpoenas, in this post-digital world, we are not convinced that SCA warrants -- which are required under the statute to obtain certain content-based information that cannot be obtained with a subpoena due to heightened privacy interests in electronic communications -- should nevertheless be treated as subpoenas.
With that argument out of the way, the court affirms the lower court's ruling: Facebook does not have standing to challenge the 381 warrants issued by prosecutors. If Facebook doesn't like it, it's welcome to take it up with its Congressional representatives.
The dissenting opinion is less kind to the majority's opinion -- and to the actions of DA Vance's office. Judge Wilson lays down this scathing description of the warrants the court says Facebook can't challenge.
The facts are these: On the basis of a single 93-page affidavit (not subsequently shown to Facebook, or to its users whose files were seized, or to the Appellate Division, or to this Court), Supreme Court issued 381 warrants. Those bulk warrants authorized the seizure of what the District Attorney tepidly describes as "specified categories of information," but which functionally amounts to 381 users' entire histories on the platform. At least several of the users were high school students who are unlikely to have themselves been suspects in the investigation.
The warrants compelled Facebook to produce not only any and all text, photos, or videos a user had shared with her limited universe of friends, but also any private messages exchanged between the user and another individual (who could have been a spouse, doctor, religious figure, or attorney), as well as information the user had chosen to no longer share with anyone, such as a previous email address, a deleted friend, or a hidden post, and information the user had never intended to share with anyone, such as her searches and location.
It also compelled Facebook to produce content shared by users who were not named in the 381 warrants, and may not even have known anyone named in the 381 warrants, but had the misfortune of posting on the timelines of those users, uploading photos of those users, or simply belonging to any one of the groups with which a named user was affiliated.
Wilson's dissent goes on to point out the end result of this "our hands are tied by a perverse combination of federal, state, and local laws" decision: Facebook will be forced to entertain even more of these overly-broad warrants. The court's decision eliminates any possible remedy for service providers.
Finally, this appeal is the only opportunity to litigate fully the rights Congress granted to Facebook. The grounds underlying at least one portion of Facebook's motion to quash are specific to Facebook, not its users, and Facebook is before us to defend not only the constitutional rights of its users (where the majority has focused its analysis), but also its own business interests.
Even if those users could realistically seek relief for their own injuries through pretrial suppression hearings or Section 1983 suits -- which the majority believes, but I dispute -- Facebook will not be a party to those actions and the hypothetical resolution of their claims would not address or remedy Facebook's injuries. The majority does not suggest an alternative means for the company to vindicate its right to be free of unusually voluminous or unduly burdensome requests.
Under the majority's decision, this Court is powerless to protect the business interests of a major company [or] return information seized from either the 381 individuals, many of whom were never suspected of wrongdoing, or the thousands of innocent individuals who communicated or simply happened to share an interest with a user named in the bulk warrants…
This is a straight-up win for DA Cy Vance's office and New York law enforcement. It does nothing for anyone else involved in the equation, including the vast majority of those swept up in the "search." As the dissent notes, only 62 of those named in the warrants ever faced criminal charges. Most of those whose information was sought were innocent bystanders who had the unforeseeable misfortune of communicating with -- or being Facebook friends of -- people caught up in an incredibly broad and far-reaching fraud investigation.