Yottabytes: Storage and Disaster Recovery

Jul 28 2015   11:17PM GMT

Committing a Crime? Don’t Post It On Facebook

Sharon Fisher Sharon Fisher Profile: Sharon Fisher

Tags:
legal
privacy
social media

Companies that collect large amounts of user data, such as Facebook, Google, and Twitter, may have a tougher time fighting government requests for that information after a recent court case.

New York prosecutors had filed 381 warrants in 2013 to get photos and private information from Facebook on hundreds of public employees suspected of Social Security fraud. A Manhattan-based state appeals court has unanimously ruled that the warrants could only be challenged by defendants in criminal cases to move to suppress the evidence they produced, according to Reuters.

This is the third time Facebook has lost on this ruling, and it had already provided the requested data to prosecutors.

Reportedly, “Facebook pages showed public employees who claimed to be disabled riding jet skis, playing golf and participating in martial arts events,” Reuters writes. By collecting the Facebook data, the government has collected nearly $25 million from those people.

It’s not the first time that people have been fired or lost insurance due to pictures on Facebook. What was new in this case was the government using warrants to gather information about the people from Facebook, some of whom were September 11 first responders. It also used private messages, not just information available publicly.

This appeal arose from the largest set of search warrants that Facebook had ever received, according to the brief on the case.  It noted that of the 381 warrants, only 62 of the targeted Facebook users were charged with any crime. (Eventually, 134 users had charges filed.)

“The warrants also contained broad gag provisions barring Facebook from informing its users what the Government was forcing it to do,” the brief continues. “The Government’s bulk warrants, which demand ‘all’ communications and information in 24 broad categories from the 381 targeted accounts, are the digital equivalent of seizing everything in someone’s home. Except here, it is not a single home but an entire neighborhood of nearly 400 homes. The vast scope of the Government’s search and seizure here would be unthinkable in the physical world.”

Facebook’s objections were primarily to the fishing expedition aspect of the warrants, noting that only a fraction of the information requested had anything to do with proving Social Security fraud, and that there was no provision for the government to return the data to the users.

Throwing a sop, the court agreed that Facebook had a point. “Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the district attorney’s alleged right to indefinitely retain the seized accounts of the uncharged Facebook users,” the five-judge panel wrote, according to NBC.

Facebook also pointed out that as the holder of the data, it had to do all the work to collect it for the police, compared with a typical search warrant where the police are doing the searching.

Ultimately, though, that wasn’t enough. “If the cops show up at your door with a warrant to search your house, you have to let them search,” writes Orin Kerr in the Volokh Conspiracy legal blog. “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?”

While this particular action happened to target Facebook, there were amici curiae briefs from companies including Google, Microsoft, Pinterest, Twitter, and Yelp (as well as the New York Civil Liberties Union), because it could have just as easily been them. (Similarly, Microsoft is carrying the water for a case concerning the right of the U.S. government to seize data stored offshore, with Apple, AT&T, Cisco, and Verizon backing it up.) Tumblr, Foursquare, Kickstarter, and Meetup also filed a brief, arguing that “the lower court’s decision was especially troubling for startup online platforms like themselves” because smaller companies often lacked the financial resources to challenge warrants.

Part of the problem, the companies acknowledged, is that their business models are predicated on people being willing to share information about themselves online, which is sort of hard to do when you feel like the government could come in and snap up anything you post and the company can’t even warn you about it. Or, in lawyer talk,“Here that freeze also threatens the willingness of users to participate in online platforms — fora for speech of all kinds — that small and mid-size companies offer, for fear that their private information will be obtained improperly and without their knowledge,” the brief said.

Part of the problem, too, is that at least some of these people actually did appear to be committing fraud. In the same way that fighting for the right of people to encrypt their data and not reveal the key to the government means you end up supporting child pornographers, it’s can be more challenging to support legal principles if in the process crooks go free.

Facebook is reportedly considering whether to appeal the decision.

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  • FTClark
    We have to face the realization the Internet is public and anything that can ever be accessed or has ever been sent over the Internet is public. This includes the storage that is available over the Internet. It is troubling but completely logical.
    1,280 pointsBadges:
    report

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