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Facebook wants right to challenge search warrants for user data

Should the social network be able to contest a search warrant on behalf of its users? That issue is now being debated in court.

Lance Whitney Contributing Writer
Lance Whitney is a freelance technology writer and trainer and a former IT professional. He's written for Time, CNET, PCMag, and several other publications. He's the author of two tech books--one on Windows and another on LinkedIn.
Lance Whitney
3 min read

Facebook is arguing in a New York court that it should be able to push back against search warrants, to protect the rights of its users.

Facebook is trying to convince a panel of judges that it should have the right to challenge search warrants that let law enforcement sweep up private user data, even of people not charged with a crime.

On Thursday, a group of five judges on the New York State appeals court started hearing arguments between Facebook and the Manhattan district attorney's office over a legal issue involving bulk search warrants. The case stems from warrants issued to the social network in 2013 that forced it to disclose the complete Facebook accounts of around 300 people not charged with an actual crime, The New York Times reported Friday.

Facebook was required to share private information of 381 different people in a case where prosecutors were trying to get indictments against police officers and other public employees for disability fraud, the Times said. But 302 of the people whose accounts were exposed were never charged with fraud.

The case involves the ongoing question of if and how someone's online but private information should be protected, and a ruling could affect not just Facebook but other social-media companies as well. Google, Twitter and LinkedIn have all filed briefs in support of Facebook's position, the Times reported.

The FBI has argued that it doesn't even need a search warrant to access a person's Facebook chats, emails and other private data. That goes against a 2010 ruling by an appeals court that law enforcement officials must secure warrants in order to obtain such information.

But in the case being considered by the panel of judges, known as "In Re 381 Search Warrants Directed to Facebook Inc.," the social network has contended that even the search warrants themselves were too wide in scope and because of that the company should have had the right to reject them.

Though the judges also seem to be bothered by the wide scope of the warrants, they've so far fallen back on the fact that state law prevents people from appealing search warrants. The Manhattan district attorney's office has emphasized that point, saying Facebook has no more right to reject a search warrant than the operator of a brick-and-mortar storage company does, the Times reported.

Facebook's attorney has countered that argument, saying the company had to take an active role in searching for the information and handing it over to the prosecutors. That makes these warrants "different from a typical search warrant where you stand aside and let the police come in with a box," attorney Thomas Dupree said in Facebook's court brief.

One of the judges asked if government requests for user information could be thought of as a subpoena or a mixture of a warrant and a subpoena. Such an approach would give Facebook the right to challenge them. And in a case that clearly is a difficult one for the court, that approach could provide the legal justification Facebook would need to back up its position.

When asked to comment, Facebook pointed to its legal brief, which includes the following statement about its position:

This case, of course, concerns Facebook--an online social networking service with more than one billion users. Many of these users treat Facebook as a digital home where they share personal and private information. They use Facebook to share photographs, videos, and communications of a personal nature, and they control the audience with whom they share this information. The Government's bulk warrants, which demand "all" communications and information in 24 broad categories from the 381 targeted accounts, are the digital equivalent of seizing everything in someone's home. Except here, it is not a single home but an entire neighborhood of nearly 400 homes. The vast scope of the Government's search and seizure here would be unthinkable in the physical world.