ACLU, NYCLU court filing backs Facebook challenge to Manhattan DA

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An ACLU and NYCLU court filing backs Facebook's challenge to Manhattan DA's warrants.

The New York Civil Liberties Union (NYCLU) and the American Civil Liberties Union (ACLU) have thrown their support behind Facebook's challenge to the Manhattan district attorney's attempts to force the social media site to turn over the contents of 381 Facebook accounts.

In an amicus brief filed in New York Supreme Court, Appellate Division, the two civil liberties groups said the case has First and Fourth Amendment implications and flies in the face of the New York State Constitution as well.

The Manhattan DA's office had served Facebook with warrants for the account data in July 2013 as part of its investigation into Social Security fraud. The warrants were sweeping, ordering Facebook to produce every scrap of communications from the accounts in question. The district attorney was also able to convince the court to impose a gag order on the social media company, barring it from disclosing the office's request for those records to accountholders. Facebook appealed the following August and the DA asked for the gag order to be lifted, shortly before  the Facebook appeal was denied in New York Supreme Court.

In the brief, filed August 7, the ACLU and NYCLU call the warrants out as too broad, noting that the Fourth Amendment “requires warrants to be particularized,” a requirement that is particularly true for “electronic services, and especially to electronic searches directed at expressive activity protected by the First Amendment.”

The warrants issued for the Facebook account information “lacked any meaningful limiting criteria,” the brief said. They “failed utterly to satisfy” the particularity requirement of both the U.S. and New York State constitutions.

The brief challenges the earlier court ruling that issued an indefinite gag order, saying “the First Amendment requires such gag orders to be narrowly tailored to serve a compelling government interest.”

Attorneys for the two groups also asked the court to “reject” the DA's attempt “to dismiss [Facebook's] meritorious appeal” because denying the motion to quash the warrant “is not an appealable order.” Facebook, they wrote, had the right to ask the court to quash the warrant and raise concerns about customer privacy on their behalf under a third-party standing doctrine giving businesses the authority “to raise the rights of their customers where their customers would be hindered from bringing their own legal challenge.”

The district attorney has argued that the controversy is moot since Facebook has since handed over the information requested by the warrants and because the gag order was dropped three days after Facebook filed its appeal. But the brief takes issue with those contentions, noting that the DA's office “continues to retain the electronic communications not only of the 62 individuals who have been indicted based on the records that Facebook turned over but also of the hundreds who have not been indicted” and expressing concern that there is nothing stopping prosecutors from seeking similar gag orders in the future.

“Government entities shouldn't be conducting broad fishing expeditions into our personal and social conversations with our family and friends with no regard to our privacy,” NYCLU Executive Director Donna Lieberman said in an NYCLU press release sent to SCMagazine.com.

The ACLU had not responded to a query by press time.

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