The New York Civil Liberties Union is filing a motion for leave to file an amicus brief today urging the New York Court of Appeals to review a lower court’s decision barring Facebook from protecting the privacy of its users against sweeping search warrants issued by the Manhattan district attorney.
“In the digital age it’s almost impossible to avoid putting your information online or using social media to connect to others, and that shouldn’t mean you have to give up your privacy,” said NYCLU Executive Director Donna Lieberman. “Facebook should have a right to object when the government makes a sweeping, secret grab of the personal information contained in its customers’ accounts, especially when those people have no way of stopping this violation of privacy themselves.”
In July 2013, the Manhattan DA applied for and secured a set of warrants regarding 381 Facebook accounts in relation to an ongoing investigation into social security fraud. The warrants directed Facebook to produce virtually every communication from these 381 accounts, including private messages, chat histories, photographs, group memberships, comments posted on pages of friends and family, and comments by friends and family to these individuals. The DA made no promises regarding how it would use this information or even whether the records will ever be expunged.
More than 60 percent of Americans use Facebook, and their accounts contain a wealth of private communications and personal information. The NYCLU contends that the Appellate Division First Department incorrectly ruled that Facebook does not have the authority to challenge overbroad, illegal search warrants on behalf of its customers, and that Facebook’s users’ best shot at challenging the search is to wait for criminal charges to be filed against them.
But, as the NYCLU notes, the vast majority of the users whose accounts were accessed by the Manhattan DA were never charged with a crime. And to date, the DA’s office has not made any commitments to either return or destroy the information it recovered during its searches, even though the warrants were issued two years ago and most of the people it investigated were never charged, let alone found guilty of a crime.
“Without companies like Facebook objecting to law enforcement’s secret demands for full access to its customers' accounts, there are few real ways currently to protect our private information on social media from government surveillance,” said NYCLU Senior Staff Attorney Mariko Hirose. “Allowing Facebook to stand up for its customers is an important check on law enforcement’s increasing demands for our private social media activity.”
The American Civil Liberties Union, American Constitution Society of NYU Law School and the New York State Association of Criminal Defense Lawyers joined the NYCLU on the motion and brief.