Facebook rallies social media allies in fight over NYC police search warrants

Social media companies and civil liberties organizations have joined Facebook in its fight against police investigators seeking mass search warrants on customers' accounts.

Fishing for marlin. Teaching karate. Flying helicopters.

Such are the activities you should not participate in – or at least brag about on Facebook – when fraudulently collecting disability payments from the government.

But that’s exactly what at least 106 New York City police officers, firefighters, and other civil servants had been doing for years, according to Manhattan district attorney Cyrus Vance Jr., who indicted the alleged fraudsters in January.

A main source of evidence in Mr. Vance’s case were the brazen photos the suspects placed on their Facebook profiles – as well as their private messages and other personal info typically unavailable to the public. When investigators obtained a search warrant for the information from the social media site last summer, the company fought back, arguing that the search was “unreasonable” under the Fourth Amendment to the US Constitution.

Facebook lost, but in June the social media company filed an appeal. And on Monday, lawyers representing Foursquare, Kickstarter, Tumblr, and Meetup – as well as the American Civil Liberties Union and the New York Civil Liberties Union – said they would join the fight on Facebook’s side.

This move has set the central stage in the growing battle between social media organizations and law enforcement officials. The former say that mass warrants allowing access to every aspect of hundreds of accounts is a gross breach of digital-era privacy, while the latter describes these relatively new personal information databases as a valid investigative resource.

“With the burgeoning tech industry in New York, the need to protect the privacy of users has never been greater,” Richard Howell, a former judge representing the four tech companies, told the Associated Press.

In Facebook’s filing in June, the organization said that the original search warrant, which included 381 accounts, including those of high school students and grandmothers, was “the equivalent of searching a neighborhood of nearly 400 homes.”

Prosecutors, in response, noted that they had given New York Supreme Court Justice Melissa Jackson over 93 pages of details on why the accounts would be targeted.

The decision in Facebook’s original challenge, however, hinged not only on whether the search was “reasonable” as proscribed by the Constitution, but also on the social media company’s legal standing.

In the first round of the company’s legal challenge, a Manhattan judge ruled that the group lacked the right to battle the warrants on behalf of their customers. Moreover, the company could not inform their customers of the searches in the New York fraud case, as doing so would jeopardize the investigation.

“The real question is, ‘Can they challenge warrants for their customers?’ ” Orin Kerr, a law professor at George Washington University with expertise in digital searches, told The New York Times. “And the answer is probably not, under current law.”

Facebook attorneys, for their part, have said this legal setup creates an impossible Catch-22 in which no one can legally appeal a violation of the Fourth Amendment when it comes to social media.

“It appeared to us from the outset that there would be a large number of people who were never charged in court,” Chris Sonderby, deputy chief counsel to Facebook, said to the Times. “The district attorney’s response was that these people would have their day in court. There are more than 300 people that will never have that chance.”

The case is the second high-profile court battle regarding law enforcement searches of social media.

In 2012, a New York judge ruled that an Occupy protestor active on the social media website Twitter had no standing to challenge a subpoena for his archived tweets. That decision was tailored in narrow terms, however, as it relied on Twitter’s specific terms of service regarding tweets posted on the site.

This report includes material from The Associated Press.