Appellate Division First Department to Decide Scope of Information Available in Internet Search Warrants

In connection with a massive investigation for social security and disability fraud, Judge Melissa Jackson authorized multiple search warrants requesting user information from 381 Facebook user accounts.  On August 20, 2013, Facebook moved to quash the requests for their “extraordinary overbreadth and lack of particularity.”  See Facebook Motion to Quash at 1.

 

In September 2013, Judge Jackson denied Facebook’s Motion to Quash, ordering their immediate compliance with the Search Warrants.  The warrants included a non-disclosure provision restricting Facebook from informing the users who were the subject of the search warrants.  Jackson reasoned that, “Facebook is a digital storage facility of its subscriber’s digital information; the information is not kept on the user’s computer.  Hence, the search warrants authorize the search and seizure of digital information contained within the Facebook server.” 

 

As a partial basis for her decision, Jackson stated that Facebook didn’t have standing to challenge the warrants since they have no expectation of privacy in the information stored on their servers, and that the appropriate party to raise this challenge would be the users themselves.  On the issue of overbreadth, Jackson stated that on the facts presented the court found probable cause that, “evidence of criminality would be found within the subject Facebook accounts.”  On the nondisclosure issue, Judge Jackson stated that the court has authority to order nondisclosure during an ongoing investigation when the investigation can potentially be compromised.      

 

On June 20, 2014, Facebook filed an appeal with the First Department raising several issues: 1) whether the trial court’s denial of the Motion to Quash is appealable; 2) whether Facebook has standing to fight the government request; 3) whether the warrants issued violate the Fourth Amendment; and 4) whether the gag provisions of the warrants violate the Stored Communications Act and the First Amendment. 

 

To criminal law practitioners in New York, the Fourth Amendment issue implicated here is of great importance.  The First Department will be deciding what limitations, if any, should be imposed on internet search warrants.  Will the Government continually be permitted to request all information pertaining to an internet account or will the First Department place some limitations on the scope of information that can be requested? 

 

The latter will give criminal defense practitioners a foothold for combatting overly-broad internet search warrants.  At this point it’s common practice for investigating authorities to obtain a warrant for any and all information pertaining to an online user account.  For example, I recently worked on a case in New York County which involved search warrants for multiple user accounts for online gambling websites.  A favorable ruling from the First Department on this appeal will provide a great tool for New York defense attorneys in combatting broad requests for information from internet services. 

 

In light of the Supreme Court’s recent decision in Riley v. California in which the Court recognized that heightened Fourth Amendment scrutiny applies in the digital world, we can be hopeful that First Department will adopt some of the logic from the Court’s recent ruling and hold that sweeping searches of internet user accounts violate the Fourth Amendment.       

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