Last week a New York state appeals court recognized that “Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home.” Nonetheless, the court held that online providers and their users are powerless to stop the government from obtaining details about the users’ online activities once a search warrant has been issued, even where the search warrant may be improper.
The court held, consistent with well-established law, that once a law enforcement official possesses a search warrant directing a third party (e.g., Facebook, Google, cable company providing internet access) to provide details about an individual’s online activity (e.g., Facebook account, Google email account, search history), that third party and the individual whose account is under investigation have no ability to prevent law enforcement from obtaining those account details. According to last week’s decision, courts should not intervene until after the production is made. The individual’s remedies come later, such as by filing a motion to suppress the evidence in a subsequent criminal case brought against the individual. But that remedy simply keeps those often sensitive details away from the jury. By then, the government has spent months or years in possession of them.
The decision highlights the difference between a subpoena and a search warrant as tools to compel production of information and documents from a third party. A subpoena is typically served on the recipient, who then has a set period of time to make the production or file a motion in court challenging the subpoena prior to production. The recipient may promptly share the existence of the subpoena with the target, such as the Facebook user, whose information is the subject of the subpoena. The target may file his own motion to quash in court, seeking to block the production. Effective lawyers can often negotiate the subpoena, reaching agreements to narrow the scope of what must be turned over and to provide copies of documents rather than originals.
A search warrant’s execution can be far more dramatic and disruptive. Law enforcement officials often appear at the recipient’s office or home, warrant in hand, and immediately start rummaging through cabinets and drawers hunting for the documents in question, which are then seized and carted away. In the case of electronic data, that may mean the government seizes the recipient’s computers.
Facebook argued that its situation was more akin to a subpoena compliance than a warrant because the government relied on Facebook employees to gather the targeted details, and therefore it should have the ability to context the warrant prior to execution. The appeals court disagreed, finding that distinction as irrelevant since a warrant need not be executed through a forcible entry, search and seizure.
In the court’s view, Facebook and its users have sufficient pre-execution protections because a warrant can only be issued after a “neutral and detached judicial officer or magistrate” has determined that all constitutional safeguards are satisfied. The problem there, many privacy advocates would argue, is that the judicial officer’s determination is made behind closed doors and with only the government’s side of the story.