Do Facebook Searches to Show Disability Fraud Violate the Constitution?

Looking for evidence of disability fraud, the district attorney for Manhattan (New York County), in July 2013 obtained 381 search warrants, supported by a 93-page affidavit, and served them on Facebook as part of a long-term investigation into a massive scheme.

The search warrants were “sealed,” which means they were not made public. The grounds for the warrants were that posts, photos and other information could provide ample evidence of activity that would show that those being investigated were not disabled.

Ultimately, 106 former New York police and firefighters were arrested, which The New York Times reported in January 2014. They were accused of having been”…coached on how to fail memory tests, feign panic attacks and, if they had worked during the Sept. 11, 2001, terrorist attacks, to talk about their fear of airplanes and entering skyscrapers, prosecutors said. And they were told to make it clear they could not leave the house, much less find a job.”Facebook previously had filed an objection to the search warrants, claiming they were in violation of the 1984 Stored Communications Act since the Facebook content would be turned over to the DA rather than released by the users in response to Facebook requests.

“Many personal items not particularly of import to a criminal investigation, but certainly sensitive, private and important to customers, will be disclosed,” Facebook also argued.

Judge Melissa Jackson on Sept. 17, 2013, denied Facebook’s objection completely, saying it was “the Facebook subscribers who could assert an expectation of privacy in their posting, not the digital storage facility, or Facebook.”

The court reasoned that the criminal defendant could move to suppress. Thereafter, the trial court unsealed 79 of the search warrants following grand jury indictments, and the remaining 302 search warrants remain sealed.

Of course, if subscribers do not know about the warrants, it is impossible for them to assert their expectation of privacy.

Facebook Appeals

Even though Facebook complied with the search warrants, it challenged them on appeal and asked that the New York Courts inform the remaining 302 users about the search warrants.

For the vast majority of those Facebook users, the information requested was not relevant to any crime, according to the Electronic Frontier Foundation, which supports Facebook’s position.

On June 20, 2014, Facebook filed a brief under seal in the New York State Supreme Court Appellate Division in the case of IN RE 381 SEARCH WARRANTS DIRECTED TO FACEBOOK, INC. AND DATED JULY 23, 2013.

The “Fourth Amendment does not permit the Government to seize, examine, and keep indefinitely the private messages, photographs, videos, and other communications of nearly 400 people — the vast majority of whom will never know that the Government has obtained and continues to possess their personal information,” Facebook’s brief states.

The brief also addresses the 302 search warrants that remain sealed and asks the court “… for the return or destruction of the data as well as a ruling on whether the bulk warrants violated the Fourth Amendment to the U.S. Constitution and other laws.”

The First Amendment does not “permit the Government to forbid Facebook from ever disclosing what it has been compelled to do — even after the Government has concluded its investigation,” Facebook’s brief claims.

In addition to the Constitutional challenges, Facebook further claims that the warrants were overbroad:”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.The EFF supports Facebook’s position in its brief which among other things states the following: “On the merits, the overly broad warrants go beyond what the Constitution permits by failing to identify with particularity the criminal evidence to be seized, and failing to put in place procedures to protect the privacy of the people whose lives were invaded by the government.

Where Is This Case Headed?

One might conclude that only the U.S. Supreme Court can decide the scope of these search warrants for Facebook user content, and that’s probably correct. Given the content that users post on social media, the implications of this lawsuit are huge, and the Supreme Court may feel it needs to weigh in.

Regardless of how high this case goes, questions abound if Facebook should lose. Will we see a flood of search warrants served against every social network? If so, will the potential risk put a big chill on usage?

Peter S. Vogel

E-Commerce Times columnist Peter S. Vogel is a partner at Gardere Wynne Sewell, where he is Chair of the Internet, eCommerce & Technology Team. Peter tries lawsuits and negotiations contract dealing with IT and the Internet. Before practicing law, he was a mainframe programmer and received a Masters in computer science. His blog covers IT and Internet topics. You can connect with him on Google+.

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