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?
Earlier today, the New York intermediate court of appeals handed down its ruling, In re 381 Warrants Directed to Facebook, Inc. The court held, consistently with my post, that Facebook could not bring a pre-enforcement challenge to the warrants. Because the decision’s reasoning is pretty similar to my blog post, I don’t have much to say about it. I think it’s correct on the law for reasons I explained before.
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. But procedurally, the court was correct that the challenge is for the users to bring ex post rather than for Facebook (or anyone else) to bring ex ante. Past experience suggests that a lot of readers find procedural arguments like this really frustrating. To some readers, enforcing the Constitution demands litigation: The more review, the better. But at least based on current law, I think the court’s decision is correct.
With that said, the opinion has some dicta that strikes me as troubling. Troubling passages are more interesting than correct ones, so I thought I would focus on the troubling parts. First, in a discussion of the third-party doctrine, the court states:
While a search warrant and probable cause are required to search one’s home, under the Third-Party Doctrine only a subpoena and prior notice (a much lower hurdle than probable cause) are needed to compel an ISP to disclose the contents of an email or of files stored on a server.
Although that is the statutory rule for certain kinds of contents under the Stored Communications Act, it’s worth noting that the lower courts that have reached the issue are so far unanimous in holding that the Fourth Amendment requires a warrant for contents held by Internet providers. The thinking (correct in my view) is that the third-party doctrine does not apply to contents of communications held by Internet providers. See, e.g, United States v. Warshak (6th Cir. 2010) (holding that a warrant is required in such circumstances under the Fourth Amendment, and that the relevant provision of the Stored Communications Act is unconstitutional to the extent it allows access with less than a warrant).
Second, in rejecting Facebook’s argument that it should be able to bring an ex ante challenge because SCA warrants are like subpoenas, the court offered the following passage:
To accept Facebook’s argument is to embrace the notion that a warrant is limited only to traditional search warrants authorizing law enforcement agents to forcibly enter and search physical places. This approach is, however, oblivious to the fact that within the context of digital information, “a search occurs when information from or about a data is exposed to possible human observation, such as when it appears on a screen, rather than when it is copied by the hard drive or processed by the computer” (Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv L Rev 531, 551 ). It is also hard to imagine how a law enforcement officer could play a useful role in the Internet service provider’s retrieval of the specified online information.
I hope it’s not poor form to bite the hand that cites you, or at least nibble at it, but I found this confusing. I agree with the court’s ultimate conclusion. SCA warrants are obtained in the traditional way of warrants, as required by both the Fourth Amendment and the SCA, based on probable cause and particularity. They are warrants for purposes of applying the traditional rule that warrants are not subject to pre-enforcement review. With that said, I’m not sure why it matters when a search occurs in the context of executing a warrant for remotely stored information, which was the subject of quoted passage above. As with most computer warrants, SCA warrants are executed in a seize-first, search-second process. But they’re still warrants, as required by both the Fourth Amendment and the statute.
Finally, at the end of the opinion, the court offers the following discussion about reviewing warrant applications:
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.
The court cites no cases for this, and the passage is a little unclear. But the court seems to be saying that a magistrate who reviews a warrant application has to do an additional ex ante reasonableness assessment in addition to the traditional assessments of probable cause and particularity. If that’s what the court is saying, then I think that’s wrong. The magistrate is required to sign the warrant if there is probable cause and the warrant is sufficiently particular. See, e.g., Fed. R. Crim. Pro. 41 (“After receiving an affidavit or other information, a magistrate judge . . . must issue the warrant if there is probable cause to search for and seize a person or property. . . .”). The probable cause and particularity requirements are the reasonableness requirement for the issuance of the warrant. Although the subsequent execution of the warrant can be challenged on general reasonableness grounds after the search occurs, that’s for judges to evaluate ex post and not for magistrates to guess at ex ante.