You're listening to Bloomberg Law. I'm June Gross with Michael Best. Facebook took its case challenging search warrants for user accounts to New York State's highest court. The Manhattan District Attorney sent the social networking site three search warrants in in connection with an investigation against retired New York City police and firefighters for social security fraud in the millions of dollars.
Facebook challenge the warrants, but lower courts sided with prosecutors, ruling that Facebook did not have legal standing to object since the target was information about possible suspects, not about Facebook. Facebook turned over the data, but has continued to contest the actions of prosecutors. Our guest is or in cur He is a professor at George Washington University Law School. Or in What was Facebook's argument as to why it should be able to challenge the search warrants issued by
a judge? Facebook has two different arguments. One argument they made is that the statute that governs access to warrants for email accounts gives them that right. And then the second argument they had is that the Fourth Amendment of the Constitution allows them to represent their users and stand in form for their position and and challenge the warrants as if they were the users. What explain your position
on those arguments? Are they good arguments? So? I think, uh, I think they're not great arguments, but that Facebook has a good argument that maybe is implicit in what it's saying, but it's not clear. So let me let me take you through that. I think the statute itself probably does not grant Facebook the ability to challenge the warrants. Uh. The statute says that they can challenge subpoenas, but it does not refer to warrants just in terms of the
text of the statute. Uh. Probably Facebook can't stand in the position of its users to bring a Fourth Amendment challenge because the users themselves don't have a right to bring a Fourth Amendment challenge. Under the Fourth Amendment, ordinarily, a user has to wait until a search occurs pursuing to a warrant and then bring a legal challenge, and Facebook wants to bring an enforcement action before there's before
the warrant is executed. On the other hand, Facebook does have a good claim that it has a right to legal review of the validity of the warrant because of a matter of due process. It's due process right in the Constitution is to challenge a warrant that's trying to bind Facebook of this long term, long principle of constitutional law that you can't be bound by a court order without the right to challenge it. And we'll see if
that carries the day or in. You know, those are some very complicated ways of looking at it, actually, and you know, the d A's office, I think the District Attorney Evans in New York actually argued this himself. Uh, they're asserting that, look, this is just like if we had a search warrant for a box of somebody's papers at home. It just happens to be stuff that's stored in a server in another company that it's it's six or one, half a dozen the other and we should
be able to do this. And Facebook is saying, look, it's very private information, and you know, these are things the most personal details that people have. Isn't this just another outgrowth of the fact that the law really hasn't and that it really hasn't figured out how to deal with the idea that we put so much of our personal information onto third party computer servers. Now I don't think it's so much that the law hasn't caught up as that the law isn't sure of how to treat
the problem. So here's what's different. When the government wants to search your house, they get a warrant and they break down your door and they search your house. They don't get somebody's permission, They don't go through your landlord, they don't go through anyone. They just do it right. They do it forcibly in a physical world. On the other hand, when they get a warrant, when the government gets a warrant to search an email account, they don't
break into the email server. They don't themselves, you know, go to Google and and and break into its servers. Instead, they work with the company, the third party provider Facebook, Google, Yahoo and the like and say, hey, you get us the information on our behalf. And the question is does
that change things or not. Does that introduction of the big third party company that's in charge of the account mean that there's a new person who can step in and say, hey, wait, we don't think this is lawful, or do you treat it just like a traditional warrant, which you know, if you if the police execute a warrant at your door. You can't stop them and say, hey, wait a minute, I don't think this warrant is lawful. You've got to get out of the way while they
search your house or in the district attorney's office. Has won at both lower courts. What was their winning argument. The winning argument was that it was that that warrants or warrants basically that the law requires the government to get a warrant. The traditional rule is that you can't challenge a warrant before it's executed. You have to bring a challenge afterwards. That carried the day below, and that
was basically the state's argument before the High Court. Well, but the you know, the third party argument issue that you brought up earlier kind of interesting because even in the physical world, sometimes you have documents or possessions that might be in the in a third party's apartment or a third party's office, and normally they can't challenge a warrant, right, So what is it about the computer world that might
make that different? What makes that what might make that different is that the way the government is getting the materials is very similar to subpoena. So let me just give you a little bit of context. There are two basic orders that the government can get to obtain information. One is a warrant that lets them break into your house. The other is a subpoena, which is just a piece of paper that says, hey, you have to come hand over the following information to the government at the following
time and place. And the law has traditionally treated those really differently. The government needs probable cause for a warrant. It does not need any cause or any substantial cause for a subpoena. And what's tricky about the way the Internet works is that warrants are executed like subpoenas. Subpoenas do allow pre enforcement challenge. If the government serves a subpoena on Facebook for custom records, it's clear Facebook can
challenge that subpoena. The question is whether they can challenge a warrant that's executed just like a subpoena or in the case has been closely watched by social media companies, civil libertarians, and prosecutors. Manhattan District Attorney Cy Vans personally argue the case in Albany. How important is this decision by a state court. It's pretty important. This would be the first state Supreme Court or any appellate court that has reached this issue, and it's one that's really important
to Internet providers like Facebook and Google and Yahoo. These are companies that would really like to be in the position of protecting the privacy of their users. Uh. And then on the law enforcement side, they worry if we allow these third party companies to step in and bring these pre enforcement challenges, then we could get stuck in litigation for months or years before we can carry out
warrants and and investigate cases. So the stakes are high, and the pro itiers care a lot about this question. It will be an important case to watch well. Or it almost sounds like something that maybe we need some statutory relief on so that people really know what the expectations are with for the companies and for the users. What is the right outcome here and is there a way to do it through a legislature. So it's it's
actually a hard question. One argument would be you don't need to have pre enforcement challenges because the providers themselves will negotiate this with the governments anyway, So what happens behind the scenes, government usually will serve a warrant on the provider the provider will say, hey, this warrant is terrible just looking at it on its face, and then the government will say, you know, gosh, you're right, We'll go back and we'll get another warrant. That usually happens
without any formal law. That's just kind of the practice in terms of how these are negotiated. On the other hand, if you you could have a formal proceeding that's allowed, you'd want it to be something fast, and you wouldn't want it to be a complete litigation on the on the warrant, because I think the law enforcement side has a good point that wouldn't want these companies to be
able to stop important investigations UH from occurring. You may you may have a case where a warrant is needed and you need time is of the essence, UH, And so you wouldn't want to get cases stuck in litigation for years while the government's just waiting for the information. So so it's actually a pretty hard question, and I suspect some sort of hearing, but not something that would be a full litigation over the warrant is probably the best way to go. I have another hard question and
thirty seconds for you to answer. It in Do you have an inkling as to how the Court of Appeals is likely to rule based on news reports of the oral argument? We just did not have clear signals either way that the justices were really interested in the issue. Was a really active bench, but they didn't tip off their hands. So I think the short answer is we don't know, and we'll have to wait for the opinion. Well,
it's been wonderful having you on Bloomberg Law. That's or In cur He's a professor at George Washington University Law School.