Face­book fights gag or­der for war­rants

AP­PEAL RE­LATES TO IN­AU­GU­RA­TION RIOT DATA In­ves­ti­ga­tors sought se­cret ac­cess to so­cial me­dia records

The Washington Post Sunday - - METRO - BY ANN E. MARIMOW

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 com­pany and 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 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 of down­town 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 pro­tect the tar­gets of an in­ves­ti­ga­tion, ac­cord­ing to the court fil­ings, only if they know their rights are un­der threat.

Pros­e­cu­tors are try­ing to pre­vent Face­book 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 pub­licly view­able.

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 war­rants to law en­force- ment.

Face­book ap­pealed. 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 briefs back­ing Face­book.

A spokesman for the U.S. at­tor­ney’s of­fice de­clined to com­ment on the sealed case that is sched­uled for ar­gu­ment in Septem­ber.

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 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 pub­lic court 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 is not 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.

Pros­e­cu­tions of the In­au­gu­ra­tion Day demon­stra­tors are play sur­veil­lance ing out in D.C. Su­pe­rior Court with tri­als sched­uled to be­gin later this year and run through 2018.

Ja­son Flores-Wil­liams, an at­tor­ney rep­re­sent­ing three pro­test­ers, tried un­suc­cess­fully to block a sep­a­rate sub­poena for the Face­book in­for­ma­tion of one of his clients.

In a court fil­ing early this year, Flores-Wil­liams said col­lege stu­dent Marisa Matthews was no­ti­fied by Face­book that the gov­ern­ment re­quested ac­cess to her on­line pro­file.

In the last six months of 2016, Face­book re­ported about 41,000 re­quests for in­for­ma­tion from the gov­ern­ment and said it pro­vided some data in 83 per­cent of those cases.

“In try­ing to ob­tain Ms. Matthews Face­book in­for­ma­tion, the gov­ern­ment is ef­fec­tively ob­tain­ing in­for­ma­tion about her friends and col­leagues, which vi­o­lates the right of as­so­ci­a­tion,” Flores- Wil­liams said in his court mo­tion that was de­nied.

“The gov­ern­ment’s sub­poe­nas/records re­quests are squarely aimed at iden­ti­fy­ing and map­ping the as­so­ci­a­tional move­ments of in­di­vid­u­als it be­lieves are in­volved in po­lit­i­cal ex­pres­sion: specif­i­cally, protest­ing the in­au­gu­ra­tion of Don­ald Trump, which is highly-pro­tected, if not the most pro­tected, form of speech.”

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