Facebook Takes User-Privacy Battle to NY’s High Court

ALBANY, N.Y. (CN) – Facebook attorneys will fight in front of New York’s high court on Tuesday to keep user accounts off limits to prosecutors investigating Social Security fraud by 9/11 first responders.

The Manhattan District Attorney’s Office sent the social-networking site 381 search warrants in 2013 related to the scheme, which the government says has defrauded the U.S. Social Security Administration of millions of dollars in disability benefits.

Prosecutors say that some of the New York City police officers and firefighters who retired after 9/11, claiming mental trauma, have contradicted their disability claims in photographs, messages and other posts made on Facebook.

According to the warrants, there was “reasonable cause to believe” that the accounts would provide evidence of grand larceny, filing false instruments and conspiracy.

After a judge with the Manhattan Supreme Court issued the warrants in July 2013, California-based Facebook Inc. brought an unsuccessful effort to quash the warrants. The court ruled two months later that Manhattan DA Cyrus Vance Jr. followed the requirements of the federal Stored Communications Act, which governs voluntary and compelled disclosure of electronic records held by third-party internet service providers.

In rejecting Facebook’s claim of standing, the court said only account holders could assert any expectation of privacy to challenge the warrants.

The court ordered Facebook to abide by the act’s provisions and not alert account holders to the warrants so as to prevent any interference with the criminal investigation.

Facebook complied with the warrants pending its appeal, and over the next year Vance’s office indicted more than 130 individuals in the benefits scheme. Of this group, 62 were among the targeted Facebook users.

The Appellate Division’s First Department in Manhattan sided with the government in July 2015, saying Facebook could not litigate the constitutionality of the warrants on behalf of users before they were served.

“There is no constitutional or statutory right to challenge an alleged defective warrant before it is executed,” Justice Dianne Renwick wrote for the five-member panel.

The court also rejected Facebook’s contention that it should have been allowed to contest the warrants under the Stored Communications Act, pointing out that the law allows objection only to court orders or subpoenas and not to warrants.

“Facebook’s argument rests on a misinterpretation of the SCA,” Renwick wrote.

She said the company wanted to be able to object to the warrants under the act as if they were subpoenas, but also wanted the government held to the more stringent probable-cause showing for search that is required of warrants.

“Facebook cannot have it both ways,” Renwick said.

Facebook contends that dismissal of its appeals could shield abuse of the act’s warrant process from appellate review.

The appeal to be heard Tuesday by New York’s Court of Appeals drew supporting briefs from the groups like the New York Civil Liberties Union and the Brennan Center for Justice at New York University School of Law. Foursquare, Dropbox, Amazon and other tech companies have also entered the fray.

Vance will argue for his office. Thomas Dupree Jr. of Gibson, Dunn & Crutcher’s Washington, D.C., office will argue for Facebook.

On its website, Facebook says it “regularly” pushes back on government requests for user data that are seen as vague or overly broad. It called the warrants sought by Vance an “unprecedented request” and said it has argued from the get-go that the warrants were unconstitutional.

“We recognize that law enforcement needs to investigate potential crimes, but we believe all government data requests must be narrowly tailored, proportionate to the case, and subject to strict judicial oversight,” the company says.

Facebook said that for the first half of 2016, it received more than 23,000 law-enforcement requests involving nearly 39,000 user accounts. The company said that for almost 81 percent of the requests, it produced some data.

Facebook is part of the Reform Government Surveillance group, formed in the aftermath of the Edward Snowden revelations of widespread spying by the National Security Agency via bulk collection of internet communications data.

Microsoft, Apple and other tech companies have gone to court in attempts to block efforts to release user data. Microsoft last year challenged the gag provisions of the Stored Communications Act before a federal judge in Seattle.