In Their Battle Over User Content, Law Enforcement Gains an Edge Over Technology Companies

By: Alexandra Foster

On April 4, social media pioneer Facebook learned it does not have as much control over its users as it may have thought. In 381 Search Warrants Directed to Facebook, Inc. v. New York County District Attorney’s Office[2], the New York Court of Appeals upheld a search warrant for content of hundreds of individuals’ Facebook accounts in connection with a fraud case. The court held that the iconic company lacks an individual privacy interest and thus cannot bring suit over the validity of the search.

After being alerted of inconsistencies in stories of “disabled” individuals somehow maintaining jobs in New York law enforcement, Manhattan District Attorney Cyrus R. Vance Jr. sought search warrants to collect evidence from the social media accounts of 381 people in connection with the alleged fraud.[3] His investigation revealed that four men in Nassau County, New York had created a business “coaching” people on how to fake mental problems allegedly “caused by the events of September 11, 2001” so they could qualify for disability benefits.[4] Approximately one thousand people sought coaching, each receiving $30,000-50,000 a year in disability benefits; a few who had done this for decades had received up to $500,000.[5] In return for the coaching services, the beneficiaries sent kickbacks of an average $20,000-50,000 to the ringleaders of the scheme, in cash or secret payment methods.[6]

This plan defrauded taxpayers of an estimated $400 million.[7] In January of 2014, and as a result of what Facebook called the “largest set of search warrants the company has ever received,” the four main ringleaders and 102 recipients of the benefits, including seventy-two NYPD officers, eight NYC firefighters, five retired city corrections officers, and one Nassau County police officer, were indicted on grand larceny charges.[8] More than ninety-five of those indicted have since agreed to plead guilty and pay over $20 million in restitution.[9]

Now, just over three years later, the New York Court of Appeals has rejected Facebook’s argument that the search warrants were invalid under the Fourth Amendment as an unreasonable search and seizure.[10] Facebook also claimed that District Attorney Vance’s move to obtain a gag order “blocking Facebook from informing the users that their accounts were the subject of the warrants” was illegal.[11] A 5-1 appellate decision for D.A. Vance affirmed the lower court’s holding that New York law does not allow Facebook to file suit for its users.[12] Further, the court maintained a that search warrant issued by a judge may not be appealed, but rather must be challenged as illegal searches by the defendant Facebook users during a pretrial hearing.[13]

Social media and technology companies allow a huge volume of users to share their everyday thoughts, opinions, and pictures at the press of a virtual button. This content is then archived on the users’ individual profiles on the platform. Facebook’s policy outlines the levels of disclosure to law enforcement agencies in criminal investigations the company permits under the federal Stored Communications Act.[14] Most relevant to the case at hand, “in-depth disclosures” of stored communications such as statuses, pictures, and messages are revealed only with a valid search warrant.[15]

This case furthers a series of ongoing debates over the relationship between privacy, technology, and law enforcement. Tension in recent years over the extent to which technology companies are required to comply with ongoing investigations has grown.[16] When Facebook filed its appeal, tech giants Microsoft, Google, Twitter LinkedIn, and Amazon weighed in on their contemporary’s behalf, expounding the benefits of expanding privacy safeguards.[17]

If technology and social media companies cannot protect their users’ information from law enforcement, users must protect themselves. This creates procedural difficulty, as users may not be on notice that someone from law enforcement has sent a search warrant, subpoena, or document request to obtain information from their accounts.[18] Like D.A. Vance, tricky prosecutors may obtain gag orders to prevent notification of a warrant, so users may legally be kept in the dark until law enforcement obtains their information and they are implicated in a lawsuit.

For 381 Search Warrants Directed to Facebook, Inc. v. New York County Dist. Attorney’s Office, obtaining millions in taxpayer restitution outweighs the rights of these criminals whose social media content further implicates them in disability fraud. The New York court has a fair, although perhaps exaggerated, point when stating that “users generally entrust the security of online information to a third party,” and thus “relinquish any expectation of privacy” of that information.[19] People cannot have an expectation of unlimited privacy online, but should have a right to know when someone is gathering evidence against them. Law enforcement may obtain evidence from private companies with a search warrant. Even if such companies have no legal standing to obtain redress through the court system, the Fourth Amendment still allows standing for subjects of the search.

Technology businesses should press Congress and the courts to decide it is contrary to the Constitution for a prosecutor to prevent users to be notified of their standing and permitted to take action. None of the 381 people charged in the lawsuit challenged the warrants on their Facebook accounts.[20] Perhaps if they had known of the information requests, they would have chosen to challenge them in court instead of needing Facebook to do it for them.

 

[1] https://www.nl-ix.net/news/facebook/

[2] 381 Search Warrants Directed to Facebook, Inc. v. New York County Dist. Attorney’s Off. 2015 NY Slip Op 06201 (Decided on July 21, 2015 Appellate Division, First Department).

[3] Associated Press, Facebook Loses Search Warrant Challenge in New York Court, Wash. Post (Apr. 4, 2017), https://www.washingtonpost.com/national/facebook-loses-search-warrant-challenge-in-new-york-court/2017/04/04/ae9e4f0a-1993-11e7-8598-9a99da559f9e_story.html?utm_term=.69150ba43f5e.

[4] 381 Search Warrants Directed to Facebook, Inc. v New York County Dist. Attorney’s Off., Slip Op 06201 at 3.

[5] Ex-Cops, Firefighters Accused in $400M Social Security Disability Fraud, Newsday (Jan 7, 2014, 7:45 PM),

http://www.newsday.com/news/new-york/ex-cops-firefighters-accused-in-400m-social-security-disability-fraud-1.6753101.

[6] Id.

[7] Id.

[8] Id.

[9] Chris Dolmetsch, Facebook Seeks to Block N.Y. Prosecutor’s Search Warrants, Bloomberg (Dec. 11, 2014, 11:34 AM), https://www.bloomberg.com/news/articles/2014-12-11/facebook-seeks-to-block-n-y-prosecutor-s-search-warrants.

[10] Id.

[11] Id.

[12] James C. McKinley Jr., Facebook Loses Appeal to Block Bulk Search Warrants, N.Y. Times (Apr. 4, 2017), https://www.nytimes.com/2017/04/04/nyregion/facebook-bulk-search-warrants-new-york-state.html?_r=0.

[13] Id.

[14] Information for Law Enforcement Authorities, Facebook Safetey Center, https://www.facebook.com/safety/groups/law/guidelines/.

[15] Id.

[16] See Paresh Dave, et al., FBI Unlocks San Bernardino Shooter’s iPhone and Ends Legal Battle with Apple, For Now, L.A Times (Mar. 28, 2016, 10L39 PM), http://www.latimes.com/local/lanow/la-me-ln-fbi-drops-fight-to-force-apple-to-unlock-san-bernardino-terrorist-iphone-20160328-story.html (explaining lawsuit between Apple and law enforcement regarding whether Apple had to unlock a mass shooter’s phone for purposes of evidence collecting).

[17] James C. McKinley Jr., Facebook Loses Appeal to Block Bulk Search Warrants, N.Y. Times (Apr. 4, 2017), https://www.nytimes.com/2017/04/04/nyregion/facebook-bulk-search-warrants-new-york-state.html?_r=0.

[18] See Chris Dolmetsch, Facebook Seeks to Block N.Y. Prosecutor’s Search Warrants, Bloomberg (Dec. 11, 2014, 11:34 AM), https://www.bloomberg.com/news/articles/2014-12-11/facebook-seeks-to-block-n-y-prosecutor-s-search-warrants (stating the district attorney sought a gag order to prevent Facebook from notifying users of the warrants).

[19] 381 Search Warrants Directed to Facebook, Inc. v New York County Dist. Attorney’s Off. 2015 NY Slip Op 06201 at 7 (Decided on July 21, 2015 Appellate Division, First Department). See also Smith v. Maryland, 442 U.S. 735 (1979).

[20] James C. McKinley Jr., Facebook Loses Appeal to Block Bulk Search Warrants, N.Y. Times (Apr. 4, 2017), https://www.nytimes.com/2017/04/04/nyregion/facebook-bulk-search-warrants-new-york-state.html?_r=0.

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