Government Should Not Be Able to Block Facebook From Telling People About Searches

If the government wants to search your Facebook account—snooping through everything from your posts, photographs, and videos to your private messages, check-ins, likes, and search history—shouldn’t you know about it in time to protect your constitutional rights? We certainly think so. And that’s what we told the D.C. Court of Appeals last week when we filed a friend-of-the-court brief in a largely secret case concerning the government’s search of Facebook accounts.

In practice, the targets of electronic searches of Facebook accounts and similar data often don’t learn about them until months after they have occurred and the materials have already been handed over to the government. That’s because the government regularly obtains gag orders to prevent Internet companies like Facebook from notifying their users about government searches of their data. In our brief, which we filed together with the ACLU of DC and Public Citizen, we argued that, absent an overriding government interest in secrecy, the government should not be allowed to block Facebook from notifying its users about the search warrants targeting them. 

The case is entirely sealed, save for a three-page public notice drafted by Facebook announcing its effort to lift the gag order and calling for friend-of-the-court briefs in support of its position. From that notice, we know that the government issued search warrants to Facebook demanding “all contents of communications, identifying information, and related records” over a three-month span for three accounts. Along with the warrants, Facebook received a gag order that prohibits the company from telling the targets of the search about the warrants.

That gag order was issued under the same statute that Microsoft is challenging in a separate case, and for good reason. Microsoft has said that, of the more than 5,000 federal demands for customer data it received over 18 months, almost half came with gag orders—and most of those were indefinite, resulting in an alarming number of secret searches.

To our knowledge, Facebook has not challenged the warrants themselves in the D.C. case, but it has argued that the accompanying gag order is unconstitutional. A lower court limited the gag so that it would expire 30 days after Facebook produced the records to the government. Laudably, Facebook refused to accept that limitation and appealed the order, arguing that notice should not be delayed because 1) the events underlying the investigation are public, 2) the search targets anonymous political advocacy and speech, and 3) Facebook has already retained all of the relevant records, which means that the subjects of the search can't destroy them when they receive notice.

Given the limited facts presented, it is hard to imagine how these warrants can be lawful. The government’s demand for “all contents of communications” over a three-month period is extraordinarily broad. It almost certainly defies the Fourth Amendment’s requirement that a search warrant describe with particularity what the government may search and seize, especially where the search targets materials protected by the First Amendment and threatens to unmask anonymous speakers. The warrants at issue in this case would allow government investigators to examine the targets’ communications with an untold number of Facebook users, including family members, romantic partners, and political allies. They would also reveal the targets’ political affiliations, reading habits, and their views on everything from politics and religion to movies and television shows.

The Constitution exists to prevent such harms, but it can do so adequately only if targeted users know their rights are in jeopardy. The users are in the best position to show how the warrants infringe their constitutional rights—and to do so before production to the government brings about the very harms the First and Fourth Amendments are meant to stop, including unwarranted invasions of privacy, unmasking of anonymous speakers, and chilling of protected speech. Without a convincing reason for secrecy, the government should not be allowed to prevent Facebook from telling its users that their accounts are being searched. We hope the D.C. Court of Appeals agrees.

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okbluzman79

My first commandment is to never put anything, ANYTHING, online that you don't want EVERYONE IN THE WORLD TO KNOW!!! This also goes for telephone, email (I'm a fan of GNUpg for this reason), basically everything!
I'm a disabled stroke survivor living in an small studio apartment, so I can sometimes go for days without saying a word or hearing another voice.
Bottom line is that in these times, anything you utter, every word you say, is subject to being public domain.
Just my two cents.

Anonymous

Thank you for your words. I couldn't agree more

ACLU Privacy

Straight from the ACLUs website:

We work with a variety of vendors who help us process data, facilitate the operation of the ACLU site and deliver messages to you on other platforms.  For example, outside vendors may help us analyze traffic on our site, process credit card transactions, or facilitate activities such as the collection and delivery of petition signatures.  To the extent that any vendor has access to personally identifiable data about you, by virtue of the fact that it participates in the operation of the ACLU site, we require that vendor to promise that it will keep that data confidential and use it only for the purpose of carrying out the functions we have engaged it to perform (with a limited exception for certain aggregated data, as described immediately below).  That is true both as to passively collected data and as to voluntarily submitted data, and also as to data from any cookie or other tracking device.

In some instances, we may agree to allow a vendor to take aggregated and anonymized data about activity on the ACLU site, and use that data for other purposes such as improvement of the vendor’s products or benchmarking for the vendor’s other clients.  But we won’t agree to that unless we believe, in each instance, that the data won’t be recombined with other information to create any record about you as an identifiable individual.

https://www.aclu.org/american-civil-liberties-union-privacy-statement

My personal comment: Practice what you preach. Keep everyone's data private and confidential. No selling it or sharing it with third party's just because you forgot to got privacy settings and opt out. Hell, in many cases the opts don't even work.

The ACLU should not preach data privacy until they themselves start living by their own demands.

Marketers

When is the ACLU going to take on the privacy violations Walmart, Target, and many other large retailers commit everyday!?

Walmart has a technology center near Betonville, just across the border in Missouri. This data collection site is connected to every Walmart camera in the country where it collects your photo, what your purchased, how frequently you visited etc... They even have agreements with Visa and Master card to collect data they can then collate to your specific purchase history. However, they don't really need it, because once your face is identified by the camera they can track your movements throughout the store and tag it to every barcode that passes the register.

And to think you thought your shopping habits were private! Doh!

Anonymous

I think this is ridiculous. I think people pretty much know that anything they put on Facebook or the Internet in general is not protected or safe. I think as long as the police are searching specific accounts, all is well. Facebook should not have the authority to notify the user. That's like a search warrant being served at someone's job but the employee called in sick for the day so the boss calls the employee and tells them that the police are looking for him. Why would anybody think that would be OK? Your Facebook posts are not protected speech in this way.

Michael J. Motta

Says the guy who posts anonymously!

Look, there is a difference between a Fourth Amendment right and skepticism as to whether or not such right will be respected. Skepticism doesn't denote a ceding of rights but rather a healthy distrust of government.

Anonymous

Yeah you fucking douche bag. Go fuck your mother

Anonymous

Unless explicitly told not to call the employee that the police are coming, I would tell my employee. You're a douche!

Bobby

Your comparison doesn't make sense. Facebook warning a user wouldn't prevent them from deleting that information (read above, Facebook already saves everything so even if a user deleted stuff, the law would still get access to that deleted info).

A more accurate comparison would be the police showing up at your house with a search warrant. They are required to have a warrant, and show it to you. If the police wanted to sneak into your house when you weren't there and do a search without you knowing, they would need to demonstrate to a judge the need for such a secret search, and then receive a warrant for such a secret search. In the article above, this secrecy is akin to the "gag order" but the problem is that judges seem to be handing out gag orders much more easily than they should be.

If the police wanted to plant a bug to listen to my private conversations with my friends, they would either need to get + present a search warrant, or demonstrate the need and justification for a secretive search and corresponding warrant. It sounds like judges are too easily willing to allow secretive searches in these cases, probably because they don't understand the technology (which really shouldn't have anything to do with it). Facebook simply wants to be able to relay that warrant to the user, just like a police offer showing up at your door with a warrant is REQUIRED to do.

William Hamilton

Facebook needs to grow a pair and tell the government to piss off.

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