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On July 21, 2015, the First Department of the New York Supreme Court, Appellate Division, ruled that Facebook could not bring a pre-execution challenge judicially issued search warrants for records associated with customer Facebook accounts on behalf of its customers.  In In Re 381 Search Warrants Directed to Facebook Inc., 2015 NY Slip Op 06201, (July 21, 2015), the court of appeals unanimously ruled that Facebook had no constitutional or statutory right to a pre-enforcement challenge to the search warrants.

On July 23, 2013, on the application of the District Attorney’s Office, a judge issued 381 substantially identical digital search warrants for Facebook accounts. The warrants sought information in 24 separate categories, essentially comprising every posting and action the 381 users identified had taken through Facebook. The warrants were obtained in connection with a large-scale investigation into the fraudulent filing of Social Security disability claims, including claims from a group of retired police officers and firefighters suspected of having feigned mental illnesses caused by the events of September 11, 2001. The application for the warrants was supported by the 93-page affidavit.

Each of the warrants contained a nondisclosure provision, which prevented Facebook from disclosing the warrants to the users.  The District Attorney’s Office justified the confidentiality requirements as necessary to prevent potential defendants from fleeing, destroying evidence outside Facebook’s control, or tampering with potential witnesses.   After a court denied its motion to quash the warrants, Facebook complied with the warrants, and the District Attorney’s Office indicted some of the targeted people.

The court of appeals affirmed the trial court’s summary denial of Facebook’s motion to quash.  First, the appellate court noted that the Fourth Amendment to the Constitution of the United States provides protections before a search warrant may issue and a motion to suppress provides protections after the warrant has been executed.  The court then ruled that since no one may challenge a search warrant pre-enforcement, the fact that the warrants were served on Facebook requiring it to obtain and provide the information did not change that situation.   The appellate court also rejected Facebook’s argument that the Federal Stored Communications Act, 18 U.S.C. 2703, provided a basis for its pre-enforcement challenge.  The court found that Facebook was misinterpreting the act and that the Act only allows an Internet Service Provider such as Facebook to challenge court orders for information and subpoenas not search warrants.

This case was unusual in that the government obtained judicially issued search warrants to obtain information from an internet service provider.  Generally, information is sought through the use of a subpoena and in that circumstance, the service provider has available remedies through which it can challenge the subpoena.