Facebook Appeals Catch-22 Order: If It Can’t Protect the Privacy Rights of Users and a Gag Order is in Effect, Who Can?

Documents recently unsealed reveal that Facebook has been engaged in a Catch-22-type dispute with the New York County’s District Attorney’s Office with regard to protecting the privacy of Facebook users. In 2013, the District Attorney’s Office, during a criminal investigation, obtained warrants for, among other things, “any and all subscriber and account information and user contact information” relating to the accounts of 381 users. In addition to the demand for information, the warrants included a “gag order” that prevents Facebook from disclosing the existence of the warrants to anyone, including the affected users.

Facebook fought the warrants, arguing in its motion to quash the subpoenas that the warrants were overbroad and therefore violated the Fourth Amendment, and that the gag order violated  Facebook’s First Amendment rights.  Facebook lost the argument when the Judge held that Facebook could not challenge the warrants on behalf of the affected users because “it is the Facebook subscribers who could assert an expectation of privacy in their posting, not the digital storage facility, or Facebook.”

The lower court’s decision has been appealed, and raises a number of highly significant issues in this era of e-commerce. First, is a search warrant that requires a company to turn over all information relating to a user’s account for a criminal investigation constitutionally overbroad? Second, can the company receiving a warrant challenge the warrant on behalf of its customers, especially where a “gag order” prevents the company from disclosing the existence of the warrant to the customer so that the customer can assert their own Due Process rights and challenge the warrant? Finally, does a “gag order” that indefinitely prevents a company from disclosing the existence of the warrant violate the company’s First Amendment rights?

Given the Supreme Court’s recent decision in Riley v. California which held that, because a person’s life can be reconstructed through digitally created and stored the parameters of a reasonable expectation of privacy have changed, the decision of the appellate court will undoubtedly be closely watched and may only be a stop on the jurisprudential journey. For further information, please contact Kenneth N. Rashbaum.