Three hundred and eighty-one people had their Facebook accounts subjected to search, and as of now, nobody knows why. The targets of the search remain unaware, as they were never notified that a warrant was issued long ago. And there are a whole lot of targets, whose online life now sits in a box in the New York County District Attorneys’ office, including whatever pictures they once thought were private and only for the viewing of the select few.
The prosecution claims it doesn’t have to, because the judge who signed the warrant, Melissa Jackson (the granddaughter of Supreme Court Associate Justice Robert Jackson), also sealed it so that no disclosure would be required. Without anyone knowing about it, no target can challenge it, whether to suppress the contents or, if there is no justification for the prosecutors to pass around their jpegs during office parties, destroy their booty.
But Facebook, to its enormous credit, didn’t do the great belly flop and let it slide. From Jim McKinley at the New York Times:
The search warrants were signed last year by Justice Melissa Jackson on the strength of a 96-page affidavit that has never been made public.
The warrants ordered Facebook to turn over every scrap of information in the accounts of 381 people, including private photos and conversations. That trove of information was used to obtain indictments for disability fraud against more than 130 police officers and other former public employees.* Justice Jackson also prohibited Facebook from informing its customers about the searches.
Heinous miscreants, drug kingpins, terrorists? Must the extraordinary secrecy be maintained lest brave and honorable people be gunned down in the streets?
Ben Rosenberg, an assistant prosecutor, told the appellate judges that 302 of the people whose accounts were searched were never charged with fraud, though photos and other data from about 30 of those accounts were used as evidence against others.
The underlying case was a fraud case, and the targets of the warrant were chosen by the Nancy Grace Official “where there’s smoke, there’s fire,” guilt by association method of Moneyball that New York County District Attorney Cy Vance has come to appreciate. A laundry list of names graced the 96 pages of the warrant. That’s a lot of pages for Justice Jackson to read. Work, work, work.
Despite its substantial weight, the 96 page warrant isn’t really much when it comes to showing probable cause to seize the private contents of 381 Facebook accounts. While no one, outside of the judge, the prosecutors and Facebook, knows exactly what the warrant application offers, there is good reason to believe that it’s a recounting of allegations against a handful of people, one of whom bore the state’s imprimatur of trustworthiness, which then goes on to list a great many names of people who trusted the state too much by availing themselves of his services. Let that be a lesson.
Facebook challenged the warrant, since the targets, its customers, could not. The case was argued before the New York Appellate Division, First Department.
That the government had seized the accounts of hundreds of people not charged troubled some of the judges. Justice Sallie Manzanet-Daniels sharply asked Mr. Rosenberg why prosecutors continued to “keep 302 people’s lives in their offices.”
“There is no question these Facebook accounts are like someone’s home,” she said. “Pictures, letters, conversations. You could do a physical search warrant and not get a smidgen of what you get out of Facebook.”
Indeed, the judges recognized that the level of intrusiveness on a Facebook warrant goes far beyond what could be obtained from a physical search. And they were “troubled.”
Justice Judith J. Gische said “nobody wants the district attorney to have personal files” on people who are not indicted or the subject of a continuing investigation. But she noted that state law does not allow people to appeal search warrants, a point later echoed by Justice Dianne T. Renwick.
“I think it’s clear that we as a bench perceive something troubling about what’s going on, but is this something that should be addressed legislatively?” Justice Gische said. “Is it really a legislative fix and not a court fix?”
Curiously, the question of whether cause existed to issue such a warrant, to seal such a warrant so that none of the targets (or anyone else, for that matter) even knew that their account had not only been compromised, but was now available for weddings and bar mitzvah amusement at 1 Hogan Place, failed to make it onto the judge’s radar.
“There is no possible justification for the warrants they served on us,” [Facebook’s attorney] Mr. [Thomas] Dupree said, adding that the private information of hundreds of people was “swept up in the government dragnet.”
“The government’s logic is chilling,” he said. “Under the government’s position, they could seize the accounts for everyone in New York City and indict one person.”
And that is, by the district attorney’s view, what could be done. One willing judge with a pen and, boom, it’s an open book to the government. Worse yet, Justice Gische’s point, that the law really doesn’t accommodate this and that it screams for a legislative solution is well taken. The nature of the law as to New York search warrants precludes challenge or appeal, except as to those who are indicted and can then move to contravert the warrant. In this particular case, however, even indicted targets weren’t necessarily told of, or given, the warrant.
To address this problem, Facebook took an interesting approach to the command of the warrant:
But Facebook’s lawyer, Thomas Dupree, argued the company was being directed to perform the searches, format the data and deliver it to prosecutors. That makes the warrants “different from a typical search warrant where you stand aside and let the police come in with a box,” and gives a media company the right to refuse to do the search if it thinks it is illegal, just as it can challenge an overly burdensome subpoena in court.
Does a judge have the power to force Facebook to become a willing accomplice to the seizure, doing the district attorney’s dirty work for him? And Justice Gonzalez showed similar concern and imagination toward the obvious wrongfulness of what happened and continued to happen, exploiting a gap in the law:
Justice Gonzalez focused his questions on whether the government’s request for information could be considered a subpoena, or some hybrid mix of a warrant and a subpoena, under the federal Stored Communications Act. If so, he said, that would give Facebook the standing to contest them. He noted that the language used in the warrants seemed to resemble the broad language in subpoenas, which a company may challenge as overly broad or burdensome.
“I think it is reasonable for Facebook to argue this language may turn what the people characterize as a warrant into a hybrid of a subpoena,” he said.
Except Justice Robert Jackson’s granddaughter’s signature is on the paper that says this is all good and legal. Does the Nuremberg defense apply?
* It’s unclear why this states over 130 defendants, as there were only 104. The number of defendants and the number of targets of the Facebook warrant do not necessarily overlap, which explains why the numbers don’t appear to coincide.