NYCLU Objects to Manhattan DA’s Grab of Facebook Users’ Activity in Court Brief

In response to the Manhattan district attorney’s sweeping warrants forcing Facebook to turn over the contents of 381 Facebook accounts, the New York Civil Liberties Union and the American Civil Liberties Union today submitted a friend of the court brief in support of Facebook’s appeal challenging the constitutionality of these warrants.

“The sensitive information we share on social media, like where we’re going and who we’re seeing, our political affiliations, our hobbies and our private conversations, are owed the highest level of protection,” said NYCLU Executive Director Donna Lieberman. “Government entities shouldn’t be conducting broad fishing expeditions into our personal and social conversations with our family and friends with no regard to our privacy.”

In July 2013, the Manhattan district attorney 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. To date, the DA has made no promises regarding how it may use this information or even whether the records ever will be expunged.

Moreover, the DA obtained a gag order of unlimited duration that prohibited Facebook from disclosing to those users that it was required to hand over their private communications, thus denying the users and opportunity to assert their own constitutional rights. The DA only moved to have the gag lifted when it became clear that Facebook would argue its unconstitutionality in an appeal.

In August 2013, Facebook requested that the court quash the warrants for violating the Fourth Amendment and challenged the gag order as a violation of the First Amendment and the federal Stored Communications Act. On Sept 17, 2013, Supreme Court Justice Melissa C. Jackson denied both of Facebook’s requests. The NYCLU’s brief is in support of Facebook’s appeal of that decision in the Appellate Division of the New York Supreme Court, First Department.

The NYCLU’s brief contends that the Fourth Amendment and the State Constitution prohibit the DA from seizing such a sweeping cache of private electronic communications, and that the gag order was an unconstitutional “prior restraint” on speech.

“Facebook is right to stand up for its users’ rights. When the government seeks sensitive information about us, it should use narrow means and be as transparent as possible,” said Alex Abdo, staff attorney at the ACLU Speech, Privacy and Technology Project. “If we have learned anything from Edward Snowden’s disclosures, it is that we must be vigilant against secret and sweeping intrusions into our privacy.”