Democracy Dies in Darkness

Public-safety

Facebook says it shouldn’t have to stay mum when government seeks user data

By Ann E. Marimow

July 15, 2017 at 3:49 PM

Major technology companies and civil liberties groups have joined Facebook in a closed courtroom battle over secret government access to social media records.

Facebook is fighting a court order that prohibits it from letting users know when law enforcement investigators ask to search their political communications — a ban that Facebook contends tramples First Amendment protections of the company and individuals.

Most of the details of the case in the nation's capital are under wraps, but the timing of the investigation, and references in public court documents, suggest the search warrants relate to demonstrations during President Trump's inauguration. More than 200 people were detained and many have been charged with felony rioting in the Jan. 20 protests that injured police and damaged property in an area of downtown Washington.

The Facebook battle in the D.C. Court of Appeals is similar to challenges percolating throughout the country from technology companies objecting to how the government seeks access to Internet data in emails or social media accounts during criminal investigations.

The D.C. case has implications for the First Amendment rights of Facebook users and others who are politically active online.

The Constitution can only protect the targets of an investigation, according to the court filings, if they know their rights are under threat.

Related: [D.C. police infiltrated inauguration protest group, court papers show]

Prosecutors are trying to prevent Facebook from giving users a heads up about search warrants connected to an investigation into potential felony charges. Prosecutors typically ask judges for nondisclosure orders when they are concerned that tipped-off targets will destroy evidence, flee or otherwise undermine an investigation.

The wording of the search warrants at the crux of the case seek "all contents of communications, identifying information and other records" and designate three accounts for a three-month period in each request, according to a Facebook court filing that is publicly viewable.

In April, a D.C. Superior Court judge denied Facebook's request to get rid of the gag order and directed the company to turn over the records covered by the search warrants to law enforcement.

Facebook appealed. The appeals court allowed the company to share some details of the sealed case to seek legal support for its cause from other businesses and organizations. Those organizations have since filed public legal briefs backing Facebook.

A spokesman for the U.S. attorney's office declined to comment on the sealed case that is scheduled for argument in September.

Nate Cardozo of the Electronic Frontier Foundation (EFF), which filed in support of Facebook's objections to the gag order, said the government has routinely overused nondisclosure orders to try to keep its surveillance activities secret.

When a criminal investigation, such as the one into Inauguration Day protesters, is widely covered, he said, "there is no need for it to remain secret."

In its public court filing, Facebook says it should be able to notify users in advance of the search because the public is already aware of the investigation. "Neither the government's investigation nor its interest in Facebook user information was secret," the company says in its brief. The company also says it has preserved the records prosecutors are seeking.

The American Civil Liberties Union, EFF and the coalition of technology companies and the Reporters Committee for Freedom of the Press say the targeted Facebook users should have an opportunity to challenge the warrants in court when their rights to engage in anonymous political speech are at stake and when the government investigation is not a secret.

"The warrants' broad sweep would enable the government to review the targets' communications with third-parties, their political and social affiliations, their reading habits, and their views on a plethora of political, social, religious and personal issues," according to the ACLU brief filed by Arthur B. Spitzer.

Related: [Inauguration Day rioter is sentenced to four months in jail]

Prosecutions of the Inauguration Day demonstrators are playing out in D.C. Superior Court with trials scheduled to begin later this year and run through 2018.

Jason Flores-Williams, an attorney representing three protesters, tried unsuccessfully to block a separate subpoena for the Facebook information of one of his clients.

In a court filing early this year, Flores-Williams said college student Marisa Matthews was notified by Facebook that the government requested access to her online profile.

In the last six months of 2016, Facebook reported about 41,000 requests for information from the government and said it provided some data in 83 percent of those cases.

"In trying to obtain Ms. Matthews Facebook information, the government is effectively obtaining information about her friends and colleagues, which violates the right of association," Flores-Williams said in his court motion that was denied.

"The government's subpoenas/records requests are squarely aimed at identifying and mapping the associational movements of individuals it believes are involved in political expression: specifically, protesting the inauguration of Donald Trump, which is highly-protected, if not the most protected, form of speech."

Read more:

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Ann Marimow covers legal affairs for The Washington Post. She joined the Post in 2005, and has covered state government and politics in California, New Hampshire and Maryland.

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