These days, it’s old news that government officials can pry into Facebook and other websites as part of their investigations. But it’s still unclear what exactly they must do to get access to sites like Facebook in the first place: can they demand information about hundreds of people all at once? And does Facebook have a right to challenge the warrants on behalf of its users?
Now, some answers are on the way. On Thursday, five judges of a New York court agreed to hear an appeal of a sweeping order from July that forced Facebook to turn over information about 381 accounts at once in a controversial “bulk warrant” process. And significantly, the judges also gave permission to a group of outside companies and organizations — ranging from Google to Kickstarter to the ACLU — to participate in the proceedings.
“We are pleased that the Appellate Division will hear this important appeal concerning vital Fourth Amendment protections against overreaching data requests. We look forward to presenting our arguments to the Court in December,” said Facebook’s Deputy General Counsel, Chris Sonderby, in an email.
The case itself is about a fraud scandal in which hundreds of New York public employees, including firefighters and police officers, claimed disability payments, even as Facebook photos allegedly showed them engaging in activities like deep-sea diving and teaching karate lessons.
But on a legal level, the case turns on what the government must do to obtain such information from Facebook. While New York prosecutors say they need to get the information in a way that prevents defendants from deleting it, Facebook has argued that the sweeping request amounts to a general search warrant of a kind that is forbidden by the U.S. Constitution.
And for Facebook and the tech industry, the challenge is not simply about the scope of search warrants, but about whether the companies can speak up on behalf of their users in the first place. The issue is especially important since many search warrant demands (including the 381 identical warrants issued on Facebook) come with gag orders that prevent companies from telling their subscribers that an investigation is even going on.
According to Justice Melissa C. Jackson of the New York State Supreme Court, who issued the search warrants in July, Facebook does not have standing since it is simply holding the data on behalf of the users. This finding is similar to what a low-level judge decided in a closely-watched case last year in which Twitter had to turn over messages of Occupy Wall Street protestors.
The willingness of the five appeals court judges to hear the Facebook appeal, and to accept the “friend of the court” submissions from the outside groups, suggests they want to give the issues of warrants and gag orders closer scrutiny.
The granting of the appeal comes at a time when the Supreme Court has expressed a renewed concern for privacy, most notably in a 9-0 decision this summer that declared police must get a warrant before searching a cell phone. Meanwhile, Apple created a stir this month by declaring that it will no longer help police obtain access to encrypted iPhone data.
The full list of organizations who received permission to participate in the Facebook appeal are: [company]Google[/company], [company]Microsoft[/company], [company]Dropbox[/company], [company]Yelp[/company], [company]Foursquare[/company], [company]Kickstarter[/company], [company]Meetup[/company], [company]Tumblr[/company], [company]Twitter[/company], the New York Civil Liberties Union and American Civil Liberties Union.