Facebook Privacy Appeal Over N.Y. Data Demand Fails

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By Jimmy H. Koo

New York’s highest court April 4 rejected Facebook Inc.'s bid to dodge a government request for user information ( In the Matter of 381 Search Warrants Directed to Facebook, Inc. , N.Y., No. 16, 4/4/17 ).

The opinion, which only affects New York courts, provides little incentive for companies to protect consumer privacy, Warren Stramiello, of counsel at defense-side litigation firm Gallo LLP in San Rafael, Calif., told Bloomberg BNA April 4. On the contrary, it incentivizes companies to cooperate with the government and keep it secret, he said.

Facebook, for its part, is left with a bad choice: challenge the warrant and lose, or keep quiet and work with the government “regardless of how ridiculous the warrant may be,” Stramiello said.

The New York Court of Appeals affirmed that the Manhattan District Attorney’s Stored Communication Act (SCA) request for information from Facebook should be treated as a search warrant. And the court has held “for decades” that an order resolving a bid to vacate a search warrant can’t be appealed, Judge Leslie E. Stein said, writing for the majority.

Facebook argued that although being denominated as warrants, the SCA warrants are “more analogous to subpoenas than traditional search warrants” and should be treated as a subpoena.

The court disagreed. “Despite the minor similarities between SCA warrants and subpoenas, in this post-digital world, we are not convinced that SCA warrants—which are required under the statute to obtain certain content-based information that cannot be obtained with a subpoena due to heightened privacy interest in electronic communications—should nevertheless be treated as subpoenas,” the court held.

According to Stramiello, the majority’s opinion is a “defensible reading of the law—if you consider the law to exist in a vacuum.”

Dissenting, Judge Rowan D. Wilson said that through the SCA, Congress granted service providers, such as Facebook, a right to move to quash the warrants, which would automatically provide standing and a right to appeal. “Facebook has a federal right to appeal an adverse decision on its motion to quash,” Wilson said.

Concurring, Judge Jenny Rivera said she agrees that the SCA permits Facebook to appeal the denial of a motion to quash the SCA warrants. However, she concurred that the order isn’t appealable because Facebook failed to properly assert the grounds for appeal.

“The opinions of Judges Rivera and Wilson show a better understanding of how law interacts with technology today,” Stramiello said.

Even though they used different approaches, “They both would have given Facebook a fair hearing on the substance of the SCA warrant with the ability for meaningful appellate review of any decision.” Stramiello said. “Regardless of the outcome of that review, the procedure would have encouraged other companies to protect the privacy of their users and struck a better balance between user privacy and law enforcement interests.”

Bulk Warrants

In 2013, Manhattan District Attorney Cyrus Vance Jr. got the warrants in connection with an investigation into disability fraud, demanding Facebook search for and collect communications, data and information from 381 different individual Facebook accounts.

Facebook moved to quash the warrants for being unconstitutionally overbroad, but a New York Supreme Court denied the bid, finding that Facebook lacked standing to assert any expectation of privacy on behalf of the account holders.

Facebook appealed the Supreme Court’s order, but the Appellate Division denied the company’s bid to stay the warrants, finding that the company’s appeals were taken from “nonappealable orders.” The Appellate Division rejected Facebook’s request that the court treat the SCA warrants as civil subpoenas for appealability purposes.

Facebook appealed to the state high court, which affirmed the Appellate Division’s holding.

Chief Judge Janet DiFiore and Judges Sheila Abdus-Salaam and Eugene M. Fahey concurred but didn’t write a separate opinion. Judge Michael J. Garcia took no part in the opinion.

Thomas H. Dupree of Gibson Dunn & Crutcher LLP represented Facebook. Vance represented the New York County District Attorney’s Office.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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