Facebook is challenging warrants on behalf of its users. Does the law allow that? And should it?

June 27

The New York Times reports about a recently-unsealed challenge by Facebook attempting to block a search warrant issued by a New York City judge. The case raises a novel and interesting question: If an Internet provider is served a warrant for a customer account, can the provider litigate the constitutionality of the warrant pre-enforcement on its customer’s behalf? Facebook says yes; the New York trial judge said no. I think the judge reached the correct result under current law. With that said, I think reasonable people could disagree on what the legal rule should be. Here are some thoughts on both current law and where the law should go.

I. The facts

Here are the facts we know so far, based on the limited documents made available. The Manhattan District Attorney’s office was conducting a large-scale investigation into a massive fraud scheme involving disability benefits. Investigators came to believe that proof of the disability fraud would be found in individual Facebook accounts. As part of the investigation, the DA’s Office obtained 381 warrants, all at once, from a New York state judge under the Stored Communications Act. The warrants asked for very broad categories of information. Oddly, all 381 warrants were based on one common 93-page affidavit.

The court issued signed the warrants, and the DA’s office served the warrants on Facebook. Facebook refused to execute them, however. According to Facebook, the warrants were unconstitutional on their face and Facebook would not comply with them. The DA’s Office refused to back down.

II. The legal challenge

Facebook then filed a motion to quash the warrants. The trial judge rejected the motion and required Facebook to comply. According to the judge, Facebook could not assert the Fourth Amendment rights of its users. Facebook had to wait until the warrants were executed and the searches conducted; only then could the legality of the searches be determined. Facebook handed over the records under court order but was allowed to appeal the trial judge’s denial of its motion to quash. The case is presently on appeal.

The Facebook appeal raises several issues, including whether the denial is appealable under New York law and whether the gag order associated with the warrant violates the First Amendment. In those post, I want to skip over those issues to focus on the broader issue: Can a provider like Facebook challenge a defective warrant before its execution? And should the law allow such challenges?

III. Why the trial judge was likely right under current law

On the first question, what the law is now, I think Facebook cannot litigate that challenge. Precedents indicate that there is no Fourth Amendment right to challenge a defective warrant before it is executed. The Supreme Court made this clear in United States v. Grubbs, 547 U.S. 90 (2006), in the course of explaining why there was no need for an anticipatory warrant to include the triggering requirement in the warrant itself. The Ninth Circuit had suggested that the condition had to be on the face of the warrant so the property owner could determine the lawfulness of the warrant and monitor whether the police were executing the warrant correctly. The Supreme Court rejected this argument on the ground that property owners have no right to debate the basis of the warrant beforehand and thus had no right to see the warrant at the outset of the search:

The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the “deliberate, impartial judgment of a judicial officer … between the citizen and the police,” Wong Sun v. United States, 371 U.S. 471, 481–482, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.

In other words, when the police come to your door with a warrant, you can’t stop the police from executing the warrant if you read the warrant and find it defective. The judge’s signature gives the police the right to execute the warrant; if the warrant is deficient, the remedy is ex post rather than ex ante. As the Fourth Circuit has explained, this is the big difference between warrants and subpoenas:

A warrant is a judicial authorization to a law enforcement officer to search or seize persons or things. To preserve advantages of speed and surprise, the order is issued without prior notice and is executed, often by force, with an unannounced and unanticipated physical intrusion. Because this intrusion is both an immediate and substantial invasion of privacy, a warrant may be issued only by a judicial officer upon a demonstration of probable cause—the safeguard required by the Fourth Amendment. The demonstration of probable cause to “a neutral judicial officer” places a “checkpoint between the Government and the citizen” where there otherwise would be no judicial supervision.

A subpoena, on the other hand, commences an adversary process during which the person served with the subpoena may challenge it in court before complying with its demands. As judicial process is afforded before any intrusion occurs, the proposed intrusion is regulated by, and its justification derives from, that process.

In short, the immediacy and intrusiveness of a search and seizure conducted pursuant to a warrant demand the safeguard of demonstrating probable cause to a neutral judicial officer before the warrant issues, whereas the issuance of a subpoena initiates an adversary process that can command the production of documents and things only after judicial process is afforded.

It seems to me that Facebook wants to have it both ways. Facebook is seeking the “license to engage the police in a debate over the basis for the warrant” that the Constitution denies even the targets of the warrant. It wants both the probable cause standard of warrants and also the pre-execution adversary process of subpoenas. But I read the cases as saying that the targets of such orders can’t have both. And if the targets themselves lack the right to bring a pre-enforcement challenge, why should Facebook have a greater right than its customers do? There’s an interesting question of whether Facebook has the same rights that its customers have to assert its customers’ Fourth Amendment rights. But even if Facebook can bring challenges whenever its users can, I’m not sure how Facebook can have a greater power to bring challenges when even its users could not.

Facebook contends that it has statutory authority to challenge the warrants based on 18 U.S.C. 2703(d). That provision states in relevant part:

A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

I’m unconvinced that this language creates authority to litigate the constitutionality of warrants on users’ behalf. First, I doubt that a search warrant counts as “an order pursuant to this section.” Section 2703 describes five kinds of legal authorization: “a court order, warrant, subpoena, statutory authorization, or certification under this chapter.” Each time Section 2703 refers to an “order,” it appears to be referring only to a Terry-equivalent order authorized by 2703(d) instead of a warrant. That limitation makes sense. The law governing subpoenas adopts that pre-enforcement standard while the law governing warrants rejects it. In light of this division, Congress needed to say whether its 2703(d) authority allowed for a pre-enforcement challenge like a subpoena or no such challenge like a warrant.

Second, even if a search warrant counts as “an order pursuant to this section,” the only ground for quashing or modifying such an order is the burden on the provider rather than the Fourth Amendment rights of its users. The provider can object that it is being unfairly roped into a time-consuming and laborious process. But the statutory right doesn’t encompass what Facebook wants to do here, namely assert the Fourth Amendment rights of its users. So I don’t think 2703(d) does the work that Facebook claims.

Maybe I’m missing something, and if so I’d be happy to post an update or correction. But at least based on my read of the materials so far, I don’t think Facebook can make a pre-execution challenge to the warrants on its users’ behalf based on current law.

IV. What should the law be?

That brings me to the normative question: Current law aside, what should the law be? Should Congress amend the Stored Communications Act so that providers can litigate the constitutionality of an ECPA warrant before executing it? I think reasonable minds can differ on that, so I thought I would run through the arguments on both sides.

The argument for allowing such challenges is that SCA warrants are strange hybrids. They require probable cause like warrants, but they are served on third parties nationwide just like subpoenas. Those third parties are often large companies that have well-trained lawyers and staff, and they are well-equipped to spot a defective warrant. Further, the statute currently does not provide for notice of the subject of a search warrant. If the government uses a warrant to obtain a suspect’s e-mails, and the case doesn’t lead to criminal charges, the suspect may never know that his e-mail was seized. When a warrant is defective, the individual will never know that his rights were violated and the government will never face the consequences of its defective warrant. To avoid that, the providers should have a right to challenge the defective warrant. The provider should be allowed to go to the issuing judge and move to quash or modify the warrant just like it could move to quash or modify a subpoena or 2703(d) court order. That will ensure greater compliance with the Fourth Amendment by giving expert lawyers from top companies like Facebook a greater role in monitoring what searches occur.

Now for the counter-argument. The argument against such challenges is that pre-enforcement litigation over a warrant is a bad idea. First, providers don’t have the whole picture of the facts. They don’t know what is in the affidavit, and they don’t know what the government will do when it obtains the e-mails. Without that, it’s difficult to litigate the constitutionality of the warrant. Second, even if providers had all the facts, a pre-enforcement challenge is problematic because it necessarily delays the investigation. Imagine that a company receives a warrant and wrongly thinks that the warrant is defective. Litigating the warrant ex ante could stop the investigation for months or even years, especially if the company can appeal the denial of its motion. Further, the government should have an incentive to follow the law without such challenges, as investigators will hope the warrants are successful and will expect warrants to be challenged in court in a motion to suppress. Even if the law should be changed, the more obvious change would be to provide notice to users after the search has been executed, not to create a provider right to a pre-enforcement challenge. That would ensure the needed post-execution challenges without creating the factual problems and delay of pre-execution litigation.

V. The Snowden effect?

As a postscript, note the dates of Facebook’s challenge. The warrant was issued in July 2013, and Facebook’s motion was filed a month later. That means the challenge was filed less than two months after the Edward Snowden disclosures began in June 2013.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law. Kerr is a former law clerk for Justice Anthony Kennedy at the U.S. Supreme Court. From 1998 to 2001, he was a Trial Attorney in the Computer Crime and Intellectual Property Section at the U.S. Department of Justice. In 2013, Chief Justice Roberts appointed Kerr to a 3-year term on the Advisory Committee for the Federal Rules of Criminal Procedure. You can follow him on Twitter @orinkerr.
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