Facebook wages battle over access to social media records
The Washington Post
Major technology companies and civil liberties groups have joined Facebook in a closed courtroom battle over secret government access to social media records.
Facebook is fighting a court order that prohibits it from letting users know when law enforcement investigators ask to search their political communications — a ban that Facebook contends tramples First Amendment protections of the companyand individuals.
Most of the details of the case in the nation’s capital are under wraps, but the timing of the investigation, and references in public court documents, suggest the search warrants relate to demonstrations during President Donald Trump’s inauguration. More than 200 people were detained and many have been charged with felony rioting in the Jan. 20 protests that injured police and damaged property in an area ofdowntown Washington.
The Facebook battle in the D.C. Court of Appeals is similar to challenges percolating throughout the country from technology companies objecting to how the government seeks access to internet data in emails or social media accounts during criminal investigations.
The D.C. case has implications for the First Amendment rights of Facebook users and others who are politically active online. The Constitution can only protect the targets of an investigation, according to the court filings, if they know their rights are under threat.
Prosecutors are trying to preventFacebook from giving users a heads up about search warrants connected to an investigation into potential felony charges. Prosecutors typically ask judges for nondisclosure orders when they are concerned that tipped-off targets will destroy evidence, flee or otherwise undermine an investigation.
The wording of the search warrants at the crux of the case seek “all contents of communications, identifying information and other records” and designate three accounts for a three-month period in each request, according to a Facebook court filing that is publiclyviewable.
In April, a D.C. Superior Court judge denied Facebook’s request to get rid of the gag order and directed the company to turn over the records covered by the search warrantsto law enforcement.
Facebookappealed. The appeals court allowed the company to share some details of the sealed case to seek legal support for its cause from other businesses and organizations. Those organizations have since filed public legal briefsbacking Facebook.
A spokesman for the U.S. attorney’s office declined to comment on the sealed case.
Nate Cardozo of the Electronic Frontier Foundation (EFF), which filed in support of Facebook’s objections to the gag order, said the government has routinely overused nondisclosure orders to try to keep its surveillance activities secret.
When a criminal investigation, such as the one into Inauguration Day protesters, is widely covered, he said, “there is no need for it to remain secret.”
In its filing, Facebook says it should be able to notify users in advance of the search because the public is already aware of the investigation. “Neither the government’s investigation nor its interest in Facebook user information was secret,” the company says in its brief. The company also says it has preserved the records prosecutors are seeking.
The American Civil Liberties Union, EFF and the coalition of technology companies and the Reporters Committee for Freedom of the Press say the targeted Facebook users should have an opportunity to challenge the warrants in court when their rights to engage in anonymous political speech are at stake and when the government investigation isnot a secret.
“The warrants’ broad sweep would enable the government to review the targets’ communications with third-parties, their political and social affiliations, their reading habits, and their views on a plethora of political, social, religious and personal issues,” according to the ACLU brief filed by Arthur B. Spitzer.