Facebook Can't Stop Search Warrants for User Information in Criminal Probe

It turns out what you don't know can hurt you, especially if you are on social media.

According to New York's highest court, Facebook could not even challenge search warrants it received for user information in a criminal investigation. The court said only the individuals, not the company, could challenge the warrants -- even though the Facebook users never even knew about them.

"Indeed, to hold otherwise would be to impermissibly and judicially create a right to appeal in a criminal matter that has not been authorized by our Legislature," Judge Leslie Stein wrote for the majority.

The ruling was bad news for online services and social media, including Twitter, Apple, Google, and Microsoft, who backed Facebook in the challenge. But it was really bad news for the individuals who were the subject of the search warrants; sixty of them have already been convicted in the Facebook sweep.

Fraud

The case stemmed from an investigation into disability fraud in 2013. Manhattan District Attorney Cyrus Vance Jr. served Facebook with 381 search warrants for information about its users, including retired police officers and firefighters suspected of feigning illness after the attack on the World Trade Center on Sept. 11, 2001.

Facebook initially resisted the warrants, but complied after being threatened with criminal contempt. The company pursued its rights in court, but lost at virtually every turn. A trial judge even issued a temporary gag order, stopping Facebook from informing its users about the warrants during the investigation.

The New York Civil Liberties Union and other lawyers advocated for Facebook, seeing the case as an opportunity to reign in government searches. Hanni Fakhouri, with the Electronic Frontier Foundation, said the courts need to do more to protect individual privacy.

"There is a real potential privacy problem with this very broad, very expansive search warrant that the government got in this case," he said.

Friended

Judge Rowan Wilson was the only judge to see it the same way as Facebook. He said the decision deprived Facebook of "any meaningful recourse" against the massive data seizure, including information about high school students who unknowingly "friended" people suspected of fraud.

"Although seizing social media content to help curtain widespread disabilities fraud may seem to some a good bargain," Wilson wrote, "the concern of this case ... is not with crime waves, but with the protection of the individual against the power of the government."

Jay Nancarrow, a Facebook spokesperson, said the company was disappointed by the decision and is evaluating its legal options.

Related Resources:

• Facebook Loses Appeal to Block Bulk Search Warrants (New York Times)
• Law That Would Let Schools Search Students' Phones Fails, for Now (FindLaw's Technologist)
• Coffee Shop Lawyers, Public Wi-Fi Is Not Your Friend (FindLaw's Technologist)