TECH

Facebook Can’t Prevent Your Posts From Being Used Against You In Court

New York judges unanimously reject Facebook's appeal.

A New York state appeals court ruling that Facebook can’t challenge search warrants seeking users' private account information was a stinging defeat for Internet privacy advocates.

Facebook said in a statement that "overly broad search warrants -- granting the government the ability to keep hundreds of people’s account information indefinitely -- are unconstitutional and raise important concerns about the privacy of people’s online information." The statement didn't say whether Facebook would appeal. 

Search warrants can only be challenged by a defendant after prosecutors have gathered evidence. But Facebook argued warrants for its users' information should have a different protocol. Because Facebook would have to gather and release users’ information to comply with the warrant, as it would in answering a civil subpoena, the social network argued it should be allowed to protest the warrant on users’ behalf.

A five-member panel of appellate judges on Tuesday unanimously disagreed, saying neither federal nor state law provides defendants a right to challenge criminal warrants before they're enforced. "We see no basis for providing Facebook a greater right than its customers are afforded," the judges wrote.

The ruling, in a case involving 381 people suspected of Social Security fraud, has implications for the 1.4 billion people who have active Facebook accounts.

Google, Pinterest and the American Civil Liberties Union, submitted briefs in support of Facebook’s case. 

Mariko Hirose, a staff attorney with the New York Civil Liberties Union, said the ruling was particularly disappointing because "there isn't a lot of law on these issues right now." A ruling limiting search warrants would have been important, she said, "because it's so easy for government agencies to grab digital information from service providers, like Facebook and email accounts, where we store a lot of private information about our lives."  

Facebook argued that users post on the site with regularity and have the expectation of privacy. “Many of these users treat Facebook as a digital home where they share personal and private information,” Facebook's legal brief argued. Facebook called the warrants “the digital equivalent of seizing everything in someone’s home.”

The Manhattan District Attorney’s office served the warrants in 2013, seeking  account information that included photos, page likes and private messages. Several dozen of the 381 users whose data was released by Facebook were later indicted, including police officers and firefighters accused of feigning illness after the Sept. 11 terror attacks.

As social media becomes a more complete record of our daily lives, that record is becoming a powerful tool that can be used in courts, often in surprising ways.

During Casey Anthony’s trial in 2011, for example, the prosecution presented Facebook photographs of Anthony partying four days after the death of her daughter Caylee, in an attempt to prove Anthony’s callous state of mind. It didn’t work.

Facebook photos of users performing physical feats have been used to target Social Security and disability fraud. A Canadian woman, on sick leave for depression, lost her benefit pay after her insurance company found photos of her having fun on Facebook, including one at her birthday party and a beach trip. Since 2010, the Justice Department has employed decoy Facebook profiles, and trained FBI agents to mine for braggarts who admit to their crimes to their Facebook friends.

Status updates, which can be traced to a location-specific IP address, have been a helpful source of alibis. In 2010, a 19-year-old was charged with two armed robberies in Manhattan. He was identified by a witness in a lineup, but a Facebook status update -- “on the phone with this fat chick...wherer my i hop” -- placed him in his parents' Harlem apartment one minute before the crimes.  

Facebook  is posting a comprehensive record of the search warrant litigation. Facebook’s help center allows users to download all of their account information into a zip file, to see what could potentially be released in response to a warrant. 

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