Court Puts Facebook Search Warrants Under Spotlight

ALBANY, N.Y. (CN) – During a probe of massive fraud in 9/11 benefits, Facebook took a stand for user privacy in objecting to bulk electronic search warrants, an attorney for the social-networking giant told New York’s high court Tuesday.

The oral arguments come four years after the Manhattan District Attorney’s Office sent Facebook 381 search warrants targeting the accounts of some of the New York City police officers and firefighters who took early retirement after 9/11, claiming mental trauma.

Investigators wanted to see if the same individuals claiming to be disabled painted a different story on their social media, and a Manhattan judge ultimately ordered Facebook to comply with the warrants. Prosecution of the benefits scheme by Vance’s office ultimately snared more than 130 individuals, 62 of whom were among the targeted Facebook users.

Resulting guilty pleas and convictions returned $25 million to the U.S. Social Security Administration, according to the DA’s office, but Facebook is still appealing the order that forced its hand.

“This is our day in court,” said Thomas Dupree Jr. of the Washington, D.C., firm Gibson, Dunn & Crutcher. “This is not going to be appealed in any other way.”

Dupree told the Court of Appeals this afternoon that the “carbon-copy” warrants for 381 accounts placed Facebook in the awkward position of “being conscripted” by law enforcement to invade the privacy of its users and turn over everything in their accounts.

The ultimate chilling effect would be a similar request for all of the electronic accounts of every resident of New York City, he said.

“No one in the world has seen any action like this,” Dupree said.

Judge Sheila Abdus-Salaam quickly contradicted this claim, noting that the warrants were issued only after the Manhattan Supreme Court justice approved them in July 2013.

DA Vance meanwhile told the judges that the case comes down to an issue of standing. Saying this is something Facebook simply lacks, Vance called the social-networking website “a repository” with no Fourth Amendment right against search and seizure.

Vance’s office applied for the warrants under the federal Stored Communications Act, which governs the disclosure of electronic records held by third-party internet service providers. Facebook’s failed attempt to quash hinged on attempt to characterize the warrants as more akin to subpoenas.

Judges Eugene Fahey and Rowan Wilson asked Vance whether he could have secured the evidence he needed through subpoenas rather than warrants, since there is no mechanism in criminal procedure law to quash warrants before they are executed. Subpoenas can be challenged, and the denials of such challenges can be appealed.

Vance said the investigation into the scheme needed the warrants to get at evidence, and that the “gag” provision of the Store Communication Act protected that evidence from destruction. The gag is what barred Facebook from alerting users that a search of their info was imminent.

Wilson wondered, though, whether any electronic information deleted from accounts could have been recovered.

It was Wilson’s first appearance with the seven-member Court of Appeals following state Senate confirmation Monday of his nomination to the 14-year post.