It is difficult to read any story about Facebook and other social media platforms without encountering a discussion of the privacy concerns of their users. In the judicial context, rules about compelling the disclosure of a user’s information for litigation purposes are still emerging. As explained by Dennis Wade in his lecture, A Carnival for the Skeptic: Using Social Media in Claim and Defense Litigation, the trend is for civil courts to permit discovery so long as the party seeking evidence can establish a publicly-available factual predicate for obtaining information in the private areas of a user’s social media account. Emerging issues about judicially compelling social media information is not limited to civil courts, however.
New York’s First Department recently considered Facebook’s challenge to the New York County District Attorney’s application for the issuance of 381 warrants in an investigation related to social security disability fraud. See Matter of 381 Search Warrants Directed to Facebook, Inc. According to the District Attorney’s office, there was “reasonable cause to believe” that the Facebook accounts constituted evidence of myriad crimes. After being served with the warrants, and the District Attorney refused to withdraw the warrants, Facebook moved to quash the warrants.
When presented with the issue, the trial court denied Facebook’s motion to quash. The lower court reasoned that Facebook could not assert the Fourth Amendment rights of its users. Rather, it would have to wait until the warrants were executed, at which point the legality of the searches could be determined. In affirming the trial court’s decision, the First Department provided a broad outline of the methods by which the Fourth Amendment, and New York’s warrant statutes, protect citizens’ privacy interests.
In a nutshell, the court explained that there are two procedural safeguards to protect citizens from unreasonable searches and seizures. The first safeguard is the existence of a neutral and detached magistrate, in this case a judge, to determine whether a warrant is based on probable cause and describes the places to be searched and the items to be seized. The second safeguard, and the most important, according to the court, is the post-execution motion to suppress. That safeguard permits citizens to challenge the validity of warrants on numerous grounds (e.g. the government lacked probable cause; the warrant was not properly executed; the warrant was invalid on its face). According to the First Department, these safeguards eliminate the need for a pre-execution motion to quash.
Facebook argued that the First Department should consider its motion to quash the warrants as analogous to a motion to quash a subpoena. The social media giant argued that this was appropriate because, in the context of online information, where it, rather than law enforcement, was tasked with seizing the materials. The Court rejected this argument, based on the reasoning that “[w]hile, for modern technological reasons, the manner in which the materials are gathered may deviate from the traditional, Facebook’s reason for seeking to quash the warrants does not.” To hold otherwise, the court reasoned, would be to limit the scope of the Fourth Amendment to physical places. Therefore, like the citizens Facebook seeks to protect, there was no right to challenge the validity of the warrants before they were executed.
The court also rejected Facebook’s argument that the Federal Stored Communications Act granted Facebook standing to contest the warrants. While that statute grants internet service providers to court orders and subpoenas, the court held that the statute did not specifically grant the right to challenge warrants.
By acknowledging that “Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home,” the court recognized that there are privacy concerns that need to be considered in the context of authorizing searches of an individual’s social media accounts. But, the First Department also recognized the need to balance those interests with the need of law enforcement to obtain information relevant to criminal investigations.
Matter of 381 Search Warrants Directed to Facebook, Inc. is the latest in a growing line of court cases, including those in the civil context, that permits the disclosure of social media content. While the way in which people store information may have changed in recent years, the judicial system’s rules to compel disclosure has not. It simply applies those rules to the new ways of doing things. Thanks to Mike Gauvin for his contribution to this post. Please email Dennis Wade with any questions.