381 Facebook Warrants, No Waiting

From a distance, the food may look delicious. It’s only when you taste it that you realize it’s bitter.  The Appellate Division, First Department, decided the long-awaited challenge to a mass search warrant for everything ever from Facebook for 381 people.  One might wonder what the structure of the warrant was, or whether it was well-founded, but that question can’t quite be answered because no one outside of Facebook, the New York County District Attorney’s office and the court knows.

No defendant, no target, no one else has ever seen it. No one.*

Of the 381 named targets in the warrants, 62 were indicted.  The other 319 have no idea that the entire contents of their Facebook pages are in the hands of the DA. And they never will.

Of the 62 who have been indicted, it’s unclear whether any of them are awaiting trial. Most of the defendants in the case have either pleaded guilty or had their cases dismissed. Notably, the court only mentioned that 62 were indicted. There was no mention of how many of the 62 who were indicted have since had their cases dismissed.

But they share the problem with the 319: the ones who were indicted, whether they pleaded guilty or not, have never seen the affidavit in support of the warrant, as the prosecution has refused to disclose it. It’s not that it hasn’t been demanded, or that they aren’t obligated to disclose it, but they haven’t.

Bear in mind, the ex-post remedy is suppression for all the evils wrapped up in this warrant. No probable cause? Suppress. No particularity? Suppress. Failure to disclose? Suppress.  Not going to trial, whether because you were never indicted, case dismissed or pleaded guilty? The law offers you no remedy.

Your life spilled all over some prosecutor’s desk, and you not only don’t know it, but can’t do a damn thing about it. Ever.

Upon receiving this mass warrant, which included an order not to disclose it, Facebook challenged it.  After being ordered to disclose, which it did, it persisted in the challenge.  This decision, by a state mid-level appellate court, exposed Facebook to the whims of any local prosecutor with a hankering for seeing your private pics and a judge willing to go through the effort of signing.

In this case, the judge ordering the warrant was Melissa Jackson, ironically the granddaughter of Justice Robert Jackson.  While it might be nice to be able to parse the affidavit in support for a warrant where only 62 out of 381 were indicted, it’s not possible, as no one has ever seen the warrant outside of the select few.

But it can be extrapolated from the nature of the underlying case and another search warrant that was disclosed, similarly outrageous as it allowed a mass seizure of medical records of individuals without any particularity, any mention of HIPAA, and all under the guise of investigating the treating physician, though it was the patients who were exposed.

The affidavit laid bare the prosecution’s claim: that all the clients of a particular lawyer, duly admitted to practice law, might be committing fraud because of what the lawyer did. Not the clients, the lawyer. So why were these 381 people targeted in the Facebook warrants? Because their lawyer was dirty, and they trusted their lawyer. Ponder the significance of that for  a moment.

At Volokh Conspiracy, Orin Kerr, to whom the court cited in its decision, notes some of the problems attendant to the decision. He also makes some assumptions about what happened and will happen here that are facially fair, but factually wrong. It’s not his fault. He wouldn’t know, but that’s because he’s looking from a distance.

Last year’s post argued that Facebook couldn’t bring such a challenge because warrants aren’t subject to pre-enforcement review. Think about how this plays out in an old-fashioned home search. If the cops show up at your door with a warrant to search your house, you have to let them search. You can’t stop them if you have legal concerns about the warrant. And if a target who is handed a warrant can’t bring a pre-enforcement challenge, then why should Facebook have greater rights to bring such a challenge on behalf of the targets, at least absent legislation giving them that right?

But this isn’t an “old-fashioned search.” In fact, it isn’t a search at all.  The cops didn’t break down the door of Facebook, throw a flashbang grenade in Mark Zuckerberg’s crib and rip open the couch cushions.  Among the distinctions is that when an “old-fashioned” search warrant is executed, the target knows it happened.  That realization comes shortly after a gun is pressed to his head and the cop screams not to move or he’ll blow their head off.

No, this was no old-fashioned search warrant. They didn’t grab drugs or guns. They went to Facebook in silence and took everything they could find for the 381 targets, 319 of whom will never know that their Facebook pics could be pinned to an assistant’s office wall.  Everything. Their stuff. Their friend’s stuff. Everything.

Had this been sought by subpoena, it would have been subject to ex ante challenge by Facebook, but they got a judge to sign off on a mass warrant, named on a list reflecting any poor schmuck who made the mistake of using a duly admitted lawyer to represent them.

Orin is certainly right that a target of a search warrant can’t lawfully demand that the guys with the battering ram at the door hold up a minute while they run to court to challenge the issuance of a search warrant.  But then, there is nothing about what happened here that is analogous in any way to the real life execution of a search warrant.

And in fact, there was no search. The warrant commanded Facebook to do the work for them.  Find it, wrap it up in a bow, and send it over. Just like a subpoena. Nothing like a warrant.  And the court said, “cool.”

* Full disclosure: I represented one of the defendants in the indictment, whose case was dismissed. I specifically demanded the Facebook search warrant affidavit. It was never turned over.

53 thoughts on “381 Facebook Warrants, No Waiting

  1. Dave

    Was the refusal to turn over the affidavit basically the main reason your client’s indictment was dismissed?

    And I have seen, under rare circumstances, where a warrant was successfully challenged pre-search, stopping the search from happening, but it was related to documents protected by law (medical records). I know, you don’t care and that isn’t the point of the article, but hey, I said it. For your convenience, I have pre-doused myself in gasoline and am holding a lit match for your use.

    1. SHG Post author

      I do not discuss my cases here. Ever. For you or anyone else. That said, no. It had nothing whatsoever to do with the dismissal. Now light up.

  2. Mort

    This decision, by a state mid-level appellate court, exposed Facebook to the whims of any local prosecutor with a hankering of seeing your private pics and a judge willing to go through the effort of signing.

    Oh, well then. We’re safe. Judges never sign bullshit put in front of them without a super good reason.

    I was worried there, for a second.

    1. SHG Post author

      There is a paragraph in the decision, toward the end, that just sums it up perfectly:

      Judges, as guardians of our Constitution, play an indispensable role in protecting the rights and liberties of individuals entrenched in the Constitution. Charged with the indispensable responsibility of reviewing warrant applications, they protect the rights and interests of individuals by remaining mindful of the reasonableness embedded in the Fourth Amendment’s delicate balance. The procedural rules attendant to the Fourth Amendment’s warrant requirement both reasonably protect the innocent and permit investigation of suspected criminal conduct. A judge reviewing a warrant request must always balance the nature and quality of the intrusion on an individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Further, this balance invokes carefully weighing the extent to which each level of intrusion in the execution of the warrant is needed. Each level of intrusion involves an implicit assertion by the government that the intrusion is “reasonable” to recover the evidence described in the warrant despite the compromise of the individual’s interests in privacy. Ultimately, to be fair and effective, the overall assessment of reasonableness requires the judge reviewing the warrant to carefully evaluate the need for each additional level of intrusion in the process of seizing evidence.

      Does that not fill your heart with pride and confidence that our judges are “guardians of our Constitution,” so no reason to worry your pretty head about it?

      1. Mort

        If we could figure out how to harness irony to fuel our cars, oil would become nearly worthless…

        1. Frank

          Ditto vomit, because I threw up a little in my mouth when I read that pile of horse manure.

      2. Mort

        The procedural rules attendant to the Fourth Amendment’s warrant requirement both reasonably protect the innocent

        So those 319 are just shit outta luck, eh? I mean, the prosecutor wanted their info, so they couldn’t have been innocent. Forget the fact that they were never charged – that ins’t important.

        Do these judges have stock in woodchippers or something? Because they sure are doing their best to create a market demand for the things.

        1. SHG Post author

          “Reasonably protect the innocent” means something different to different people. To judges, it means another judge signed off. To prosecutors, it means they deserve it since they know who’s guilty anyway. And to others, they just don’t give a shit. Problem solved.

          1. Mort

            It’s a good thing I’m already a bitter, jaded cynic, or my idealism would be sorely tested by this crap…

      3. Dave

        I believe that paragraph should be posted under your previous “boilerplate that means nothing” post.

      4. lawrence kaplan

        ” Carefully evaluate.” Right. Gotta love that. How about just “evaluate” for a start?

  3. Patrick Maupin

    No wonder you can’t agree with them, Scott. You think it’s up to them to figure out how to apply the Fourth properly online because it’s new and shiny, and they don’t think they have to apply the Fourth online, because it’s new and shiny.

    However, when applied to information stored online, the Fourth Amendment’s protections are potentially far weaker. In part, this is because computer records are stored in a technologically innovative form, raising the question whether they are sufficiently like other records to engender the “reasonable expectation of privacy” required for Fourth Amendment protection.

    Not only that, but they have bad precedence on their side from 1979 when it was so new and shiny that nobody understood it at all.

    And never mind those pesky laws passed since 1979 to help keep my data from their prying eyes, and never mind any terms of service that say that google and facebook aren’t going to randomly rummage through the data — it’s in the hands of a third party, so by God it’s not at all private any more.

    And speaking of innovation, those techies got nothing on lawyers! Lawyers now have hybrid warpoenas [*] that have the best attributes of warrants and subpoenas, all wrapped up into one! Who says the legal profession can’t innovate?

    [*] I’m sure if you study it properly and roll it around on your tongue, the correct pronunciation will come to you.

      1. Troutwaxer

        “Warpoenas…” that becomes particularly ugly if you contemplate the Latin, so I will join you in blaming Patrick if this shows up in a decision.

        1. Patrick Maupin

          For better or worse, I’m never first. A quick google shows that an anonymous coward coined the term in a techdirt comment about a year ago:

          So what is the name of this new hybrid with the powers of both a warrant and a subpoena and the limitations of neither? Perhaps a Warpoena.

    1. AP

      It’s all so new and shiny that the court apparently did not know that one of the amici curiae was the internet search company Google, Inc., rather than Goggle[.com], Inc., a company running a shady phishing website. But then why should the court care about such a petty detail as accuracy.

  4. David

    If I own property and the police have probable cause to believe that a crime was committed on that property and they can specify the place to be searched and the thing to be seized, they could get a warrant and search even if I did not want them on my land. Additionally, if the search turned up no evidence, the target would have no idea that they were ever targeted by a warrant. The police might not even have a specific target other than probable cause that a particular crime was committed at that location and that specific evidence might remain.

    The more troubling aspect is that Facebook had to search. It would be odd for them to tell me to go collect any evidence and mail it over to them nicely bagged and tagged. Isn’t the issue that they used a warrant when it should have been a subpoena? I might not like the government searching my property but if they have a valid warrant, not much I can do.

    Making me do their work seems to be totally different. It would also seem to present chain of custody issues later.

    1. SHG Post author

      Yes, there is the outlier search where you might not know it happened, but the exceptional circumstance in no way trivializes a wholesale change in the nature of searches for all digital content for everyone ever. You don’t think this matters? Wonderful. Glad you’re happy to give away the privacy of everyone else. Somehow, I suspect most people would prefer otherwise.

    2. Patrick Maupin

      Do you honestly think the “crime” was committed at the “location” of “facebook” ??!?

  5. Orin Kerr

    Scott writes, “Orin Kerr . . . makes some assumptions about what happened and will happen here that are facially fair, but factually wrong.” But then the post doesn’t seem to say what the assumptions are that I made that are factually wrong. Hope you will enlighten me. (I think I have significant knowledge of how Internet providers execute 2703 warrants, so I assume that general point was not what you had in mind.)

    1. SHG Post author

      It’s in there. You wrote:

      That doesn’t mean that the warrants were valid. The warrants sure sound problematic, and we’ll probably get rulings on that soon. According to the opinion, 62 of the 381 users whose accounts were accessed have since been indicted. I gather they will be challenging the fruits of the Facebook warrants, if they haven’t already, so stay tuned for those rulings.

      You gather wrongly, both because the prosecution has refused to disclose the warrant affidavit (we wouldn’t even have known the warrants existed but for the New York Times article) to either defendants or targets, despite express demands for disclosure, and the vast majority of defendants have already pleaded guilty because of the extremely sweet plea offers in the case to reflect that these were all cops and firefighters, 9/11 first responders, and many (likely most) were, in fact, suffering from PTSD (the fraud isn’t that they weren’t disabled, but that they were able to engage in activities that their lawyer wrote in their application that they could not).

      So no, it will likely never be challenged ex post, and at least 319, and more, people will potentially have their Facebook worlds in other people’s hands without any idea of it having happened or any means to challenge. And obviously, it’s too late to unring this bell.

      1. John Barleycorn

        We-likeS-you Orin! Keep bringing it.

        I think our esteemed host has been longing for someone of your regular and responsive conduit calibration for far too long. He likes his hairs shaved now and again while verifying the long and short term calibration of his synapses. It is good for him. It might be good for you too. I hope you are feeling the love. Don’t be a stranger.

        Standing ovation from the cheap seats. I will have to make you a banner.

        P.S. I wonder if Facebook 381 is the temperature at which servers combust. The spontaneous combustion of your garden variety book was Fahrenheit 451 if I remember correctly?

        This one is for you Orin! It looks you can let your shoulders, hips and legs attempt to find some coordinated symmetry when you put your back into it. Don’t forget to feel it.

        1. SHG Post author

          I very much appreciate Orin’s stopping by and giving me a smack whenever I need it. But I think this fits him much better:

      2. Orin Kerr

        Scott, first, I’m interested to know how you know so much about these cases.

        Second, it only takes one challenge to get a ruling. You don’t quantify “vast majority,” but I assume “vast majority” does not mean “all.” Given that the rest of the cases are still pending, are you sure that none of the remaining defendants will file motions to suppress?

        Also, are you sure that no civil suits will be filed once the cases are over?

        Orin

        1. SHG Post author

          You didn’t see my asterisk at the bottom? If you do the math, you’ll understand why the chances are slim to none of there being a ruling. First, the warrants have yet to be disclosed to anyone. Second, only 62 of the Facebook warrants were for defendants who were ultimately indicted, meaning about half of the defendants weren’t the targets of Facebook warrants in the first place.

          Third, of these, it’s my understanding that none of the Facebook warrant targets remain in the case, not because we know who they are (because the warrants have never been disclosed) but because the few who remain had no Facebook accounts. And fourth, the prosecution doesn’t care because the Facebook evidence is worthless to the case anyway. Good for publicity for the public. Crap as evidence.

          And there will be no civil suits because they never disclosed the warrants, which remain under seal by Judge Jackson. People who have no clue or evidence that they were the targets of warrants have no basis for standing and no reason to sue.

          You keep forgetting that 319 had their Facebook accounts seized who were never indicted. There’s no post hoc remedy for them. without ex ante, they’re whole lives are exposed and they’re screwed.

          And where’s your video entry? You think comments here come cheap?

          1. Orin Kerr

            Sorry I missed the asterisk! (What, you expect me to read all the way to the end?) That explains a lot.

            I gather you favor amending 18 U.S.C. 2703 to provide for notice to the target when the government obtains a warrant for the target’s contents. Has Facebook challenged the non-disclosure order with the respect to the cases no longer pending?

            Orin

            1. SHG Post author

              I don’t know what Facebook is going to do (if anything) after this decision. I hope it challenges the order, though I suspect Justice Jackson will deny it on standing. I hope they move for leave to appeal to the Court of Appeals.

              As for 2703, without notice, or at least an ex ante opportunity to challenge regardless of whether it’s called a warrant or subpoena, there is a huge hole. Digital evidence from a third party repository does not fit in the old search warrant paradigm. And any state judge, no matter how good or bad, can give it all away.

              And would it kill you to show Barleycorn a little love and tell him how much you enjoyed his Fugs music? Be a mensch.

            2. Orin Kerr

              Thanks, Scott. Your client (or some client) should file a 1983 action. There’s no Heck v. Humphrey bar because your client pled guilty. And if the warrant is as bad as it sounds, there will be no QI defense.

            3. SHG Post author

              Good news is my guy didn’t plead guilty. His case was dismissed. But no warrant, no idea if he was a target, no idea what the affidavit says, no Facebook account, no standing, no nothing.

            4. Archangel

              How about amending it to require public visibility of all warrants – so lame brain judges can’t signoff on such crap and then order it not disclosed – sunlight sanitizes not only political corruption but also legal malfeasance and prosecutorial over reach – prosecutors flush with other peoples money routinely walk all over people bringing cases without sufficient evidence yet unpenalized when they fail and the improperly accused has had to foot the bill for their defense – similarly, judges suffer no recourse for wildly over stepping – at some point there needs to be a feedback loop to curtail such misbehavior

            1. John Barleycorn

              I was going to go with a particularly interesting remixed version of Mr. Bojangles but I think Orin can roll with the Fugs. Dated but pulled very few punches. Orin is up to it. Besides the Johnny Carson TONIGHT show (for lack of a better term) infuse loud with delicate chords and note centric pre chord work about to book two thousand seat venues across the nation is still a bit premature even for you.

              In fact I am looking forward to him floating some tunes that may find you on your heels with appreciation. He is within a public transit distance of options for his ear as are you. And I don’t think he can use age as an excuse either.

              There is more to Orin than meets the eye I think-s. If such personal flavor does not deviate from his comfort zone I would expect something most worthy to add to the playlist for a lengthy twirl, if he chooses to share. He could also just float some oldies too to. No shame in that.

              Beltway danger exists in ways I never new existed up until a decade and a half or so ago though. Again with no disrespect or judgment to Orin.

              I usually yield to the 70’s motif because it still carries reverent width with its relevant which the 80’s -90’s tried to forget and the 20-s are pondering within the “new” twenty acre wood (and not too well as of yet). Which is why this spectator is very interested in what your high class law gigolos have to say about “The AG Sluts” and more than a few Judges means to the ends in search of Uncles Sam’s blessing. He is shrewd bastard.

              It’s not so dangerous either as the new sounds working their way around the past twenty years of shit are a bit pissed off and pondering what is even necessary to carry through. Dangerous is relative though I guess.

              Way to much information but with all sincerity. Go Orin! I got your six if you bring Orin.

            2. John Barleycorn

              BTW: You should sincerely give opera an honest ear. Not a damn thing to do about this discussion that I took down the rabbit hole. You would be surprised what is good for your soul if you give it a try. Jump in, feel it, and don’t fight it until you write your own!

            3. John Barleycorn

              Caressing the myth. Beautiful. just a walk past near is tragic.

              I knew you had it.

              Thank you.

              let the esteemed one interrupt.

              go get what you can wright

              you will be joined there.

              The weight at this juncture is unknown and!

              The credit is nothing you don’t already know.

              He will see his willing. I think he already does!

              Please excuse the coast, you two though?

      3. Kevin Blackwell

        Their lawyer or his agent may have been the one that actually wrote that they could not engage in activities that they were perfectly capable of, but those defendants still signed the attestations at at end of those forms that all the statements in those documents were true and correct.

        1. SHG Post author

          The MO was to put a stack of blank forms in front of clients, have them all signed in blank, to be filled out later by the lawyer. They never saw the forms.

          Frankly, they should have, and shouldn’t have signed the forms in blank, but they trusted the lawyer, did as they were told. Foolish, but not criminal.

      4. Wrongway

        although he seems pretty busy, this guy should also contribute to ‘Fault Lines’ ..

  6. Patrick Maupin

    I’m having a hard time distinguishing the “reasoning” in this decision from something that would allow a warrant to be served on Best Buy, giving them a list of targets, and requiring them to provide law enforcement with full hard drive copies if any of the targets ever call the Geek Squad for service.

    1. SHG Post author

      It could be done. If they can find a judge to sign off, because judges are the guardians of the Constitution.

  7. Pingback: Facebook Can't Challenge Search Warrants on Behalf of Users - TechRaptor

  8. Casual Lurker

    Sorry to bring things back on topic. Unlike most of you, I am not a lawyer. But I vaguely remember something in the constitution regarding a prohibition against the issuing of “general warrants”. Judge Jackson’s warpoena seems darn close to, if not fully inside, that wheelhouse.

    Oh great legal gurus, what am I missing?

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