Manhattan prosecutor issued sweeping, secret Facebook warrant

The New York Times reports on a big investigation by the Manhattan District Attorney’s office into disability fraud by more than 100 New York City police officers and firefighters. All well and good. What’s troubling is how prosecutors investigated the case. Mike Masnick explains at Techdirt:

Last week, after finally having a gag order lifted by a court, Facebook revealed how it had spent the last year fighting back against an incredibly broad search warrant from the Manhattan District Attorney’s office, for basically all information — including private messages — from 381 user accounts. The warrant came complete with a gag order forbidding the company from telling anyone — including the 381 people — about the search.

I don’t see much of a problem with looking through public social media posts for evidence of fraud. Private accounts and private messages, however, are another matter. And this obviously had nothing to do with national security, so the secret warrant and gag on Facebook is ridiculous. And it gets worse. More from Masnick:

Part of the issue, though, is over who has standing. As you may recall, Twitter was involved in a somewhat similar situation a few years back, when it went to court to protect the private messages of Malcolm Harris, who was involved in some Occupy Wall St. protests. In that case, Twitter told Harris, and Harris objected, but the court said it was only an issue between the government and Twitter, so Harris had no standing. Twitter then fought the issue, but eventuallylost. The details in this case are a bit different (including the type of request — a search warrant, rather than a 2703(d) order in Twitter’s — case, but the basic principles are fairly similar.

Masnick notes that fellow Washington Post blogger and Fourth Amendment scholar Orin Kerr told the New York Times it seems unlikely that the courts would grant standing to any of the Facebook users named in the warrant. As Masnick points out, those who were indicted can challenge the warrant. But those who weren’t won’t get a day in court to see why the government was able to sift through their online lives. One more point from Masnick:

It seems worth pointing out, by the way, that the warrant happened last July, about a month after the first Snowden revelations. While Facebook notes that it was the massive size of the warrant (more than 10x larger than any previous one) that made the company challenge it, it seems quite likely that the sudden attention on internet companies and their willingness to share personal information with the government played a big role in the decision as well. Chalk another one up to the Snowden Effect.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · July 2