1 00:00:00,040 --> 00:00:03,360 Speaker 1: You're listening to Bloomberg Law. I'm June Gross with Michael Best. 2 00:00:03,880 --> 00:00:07,520 Speaker 1: Facebook took its case challenging search warrants for user accounts 3 00:00:07,520 --> 00:00:10,960 Speaker 1: to New York State's highest court. The Manhattan District Attorney 4 00:00:11,039 --> 00:00:16,079 Speaker 1: sent the social networking site three search warrants in in 5 00:00:16,120 --> 00:00:19,640 Speaker 1: connection with an investigation against retired New York City police 6 00:00:19,680 --> 00:00:23,520 Speaker 1: and firefighters for social security fraud in the millions of dollars. 7 00:00:23,920 --> 00:00:27,840 Speaker 1: Facebook challenge the warrants, but lower courts sided with prosecutors, 8 00:00:28,080 --> 00:00:31,400 Speaker 1: ruling that Facebook did not have legal standing to object 9 00:00:31,520 --> 00:00:36,080 Speaker 1: since the target was information about possible suspects, not about Facebook. 10 00:00:36,560 --> 00:00:39,800 Speaker 1: Facebook turned over the data, but has continued to contest 11 00:00:39,840 --> 00:00:43,360 Speaker 1: the actions of prosecutors. Our guest is or in cur 12 00:00:43,520 --> 00:00:46,680 Speaker 1: He is a professor at George Washington University Law School. 13 00:00:47,360 --> 00:00:50,199 Speaker 1: Or in What was Facebook's argument as to why it 14 00:00:50,240 --> 00:00:53,040 Speaker 1: should be able to challenge the search warrants issued by 15 00:00:53,040 --> 00:00:57,080 Speaker 1: a judge? Facebook has two different arguments. One argument they 16 00:00:57,080 --> 00:01:00,920 Speaker 1: made is that the statute that governs access to warrants 17 00:01:00,920 --> 00:01:03,680 Speaker 1: for email accounts gives them that right. And then the 18 00:01:03,720 --> 00:01:06,480 Speaker 1: second argument they had is that the Fourth Amendment of 19 00:01:06,600 --> 00:01:11,639 Speaker 1: the Constitution allows them to represent their users and stand 20 00:01:11,640 --> 00:01:14,800 Speaker 1: in form for their position and and challenge the warrants 21 00:01:14,840 --> 00:01:18,640 Speaker 1: as if they were the users. What explain your position 22 00:01:18,680 --> 00:01:23,600 Speaker 1: on those arguments? Are they good arguments? So? I think, uh, 23 00:01:23,640 --> 00:01:26,520 Speaker 1: I think they're not great arguments, but that Facebook has 24 00:01:26,520 --> 00:01:29,160 Speaker 1: a good argument that maybe is implicit in what it's saying, 25 00:01:29,200 --> 00:01:30,920 Speaker 1: but it's not clear. So let me let me take 26 00:01:30,959 --> 00:01:34,000 Speaker 1: you through that. I think the statute itself probably does 27 00:01:34,040 --> 00:01:37,360 Speaker 1: not grant Facebook the ability to challenge the warrants. Uh. 28 00:01:37,520 --> 00:01:41,640 Speaker 1: The statute says that they can challenge subpoenas, but it 29 00:01:41,680 --> 00:01:43,800 Speaker 1: does not refer to warrants just in terms of the 30 00:01:43,840 --> 00:01:48,080 Speaker 1: text of the statute. Uh. Probably Facebook can't stand in 31 00:01:48,120 --> 00:01:50,480 Speaker 1: the position of its users to bring a Fourth Amendment 32 00:01:50,560 --> 00:01:53,600 Speaker 1: challenge because the users themselves don't have a right to 33 00:01:53,640 --> 00:01:56,680 Speaker 1: bring a Fourth Amendment challenge. Under the Fourth Amendment, ordinarily, 34 00:01:56,680 --> 00:01:59,120 Speaker 1: a user has to wait until a search occurs pursuing 35 00:01:59,200 --> 00:02:01,440 Speaker 1: to a warrant and then bring a legal challenge, and 36 00:02:01,440 --> 00:02:05,520 Speaker 1: Facebook wants to bring an enforcement action before there's before 37 00:02:05,560 --> 00:02:08,840 Speaker 1: the warrant is executed. On the other hand, Facebook does 38 00:02:08,919 --> 00:02:11,160 Speaker 1: have a good claim that it has a right to 39 00:02:11,280 --> 00:02:14,000 Speaker 1: legal review of the validity of the warrant because of 40 00:02:14,080 --> 00:02:16,239 Speaker 1: a matter of due process. It's due process right in 41 00:02:16,400 --> 00:02:18,920 Speaker 1: the Constitution is to challenge a warrant that's trying to 42 00:02:18,960 --> 00:02:22,960 Speaker 1: bind Facebook of this long term, long principle of constitutional 43 00:02:23,040 --> 00:02:25,480 Speaker 1: law that you can't be bound by a court order 44 00:02:25,720 --> 00:02:27,600 Speaker 1: without the right to challenge it. And we'll see if 45 00:02:27,639 --> 00:02:31,200 Speaker 1: that carries the day or in. You know, those are 46 00:02:31,280 --> 00:02:33,920 Speaker 1: some very complicated ways of looking at it, actually, and 47 00:02:33,960 --> 00:02:36,040 Speaker 1: you know, the d A's office, I think the District 48 00:02:36,080 --> 00:02:39,720 Speaker 1: Attorney Evans in New York actually argued this himself. Uh, 49 00:02:39,760 --> 00:02:42,880 Speaker 1: they're asserting that, look, this is just like if we 50 00:02:43,000 --> 00:02:45,200 Speaker 1: had a search warrant for a box of somebody's papers 51 00:02:45,240 --> 00:02:48,200 Speaker 1: at home. It just happens to be stuff that's stored 52 00:02:48,240 --> 00:02:51,080 Speaker 1: in a server in another company that it's it's six 53 00:02:51,160 --> 00:02:52,760 Speaker 1: or one, half a dozen the other and we should 54 00:02:52,760 --> 00:02:55,280 Speaker 1: be able to do this. And Facebook is saying, look, 55 00:02:55,280 --> 00:02:57,919 Speaker 1: it's very private information, and you know, these are things 56 00:02:58,000 --> 00:03:02,160 Speaker 1: the most personal details that people have. Isn't this just 57 00:03:02,240 --> 00:03:05,800 Speaker 1: another outgrowth of the fact that the law really hasn't 58 00:03:05,919 --> 00:03:08,040 Speaker 1: and that it really hasn't figured out how to deal 59 00:03:08,160 --> 00:03:11,120 Speaker 1: with the idea that we put so much of our 60 00:03:11,120 --> 00:03:15,720 Speaker 1: personal information onto third party computer servers. Now I don't 61 00:03:15,720 --> 00:03:17,840 Speaker 1: think it's so much that the law hasn't caught up 62 00:03:18,240 --> 00:03:20,480 Speaker 1: as that the law isn't sure of how to treat 63 00:03:20,600 --> 00:03:23,920 Speaker 1: the problem. So here's what's different. When the government wants 64 00:03:23,919 --> 00:03:26,040 Speaker 1: to search your house, they get a warrant and they 65 00:03:26,080 --> 00:03:27,960 Speaker 1: break down your door and they search your house. They 66 00:03:27,960 --> 00:03:30,639 Speaker 1: don't get somebody's permission, They don't go through your landlord, 67 00:03:30,680 --> 00:03:33,040 Speaker 1: they don't go through anyone. They just do it right. 68 00:03:33,360 --> 00:03:36,000 Speaker 1: They do it forcibly in a physical world. On the 69 00:03:36,040 --> 00:03:38,000 Speaker 1: other hand, when they get a warrant, when the government 70 00:03:38,000 --> 00:03:40,360 Speaker 1: gets a warrant to search an email account, they don't 71 00:03:40,520 --> 00:03:43,920 Speaker 1: break into the email server. They don't themselves, you know, 72 00:03:44,000 --> 00:03:47,760 Speaker 1: go to Google and and and break into its servers. Instead, 73 00:03:47,800 --> 00:03:52,120 Speaker 1: they work with the company, the third party provider Facebook, Google, 74 00:03:52,280 --> 00:03:54,920 Speaker 1: Yahoo and the like and say, hey, you get us 75 00:03:54,960 --> 00:03:58,240 Speaker 1: the information on our behalf. And the question is does 76 00:03:58,320 --> 00:04:01,800 Speaker 1: that change things or not. Does that introduction of the 77 00:04:01,840 --> 00:04:04,520 Speaker 1: big third party company that's in charge of the account 78 00:04:05,120 --> 00:04:08,360 Speaker 1: mean that there's a new person who can step in 79 00:04:08,800 --> 00:04:10,920 Speaker 1: and say, hey, wait, we don't think this is lawful, 80 00:04:11,440 --> 00:04:13,560 Speaker 1: or do you treat it just like a traditional warrant, 81 00:04:13,680 --> 00:04:15,720 Speaker 1: which you know, if you if the police execute a 82 00:04:15,720 --> 00:04:18,120 Speaker 1: warrant at your door. You can't stop them and say, hey, 83 00:04:18,120 --> 00:04:19,800 Speaker 1: wait a minute, I don't think this warrant is lawful. 84 00:04:19,960 --> 00:04:21,400 Speaker 1: You've got to get out of the way while they 85 00:04:21,400 --> 00:04:25,600 Speaker 1: search your house or in the district attorney's office. Has 86 00:04:25,760 --> 00:04:29,560 Speaker 1: won at both lower courts. What was their winning argument. 87 00:04:31,040 --> 00:04:34,000 Speaker 1: The winning argument was that it was that that warrants 88 00:04:34,040 --> 00:04:37,320 Speaker 1: or warrants basically that the law requires the government to 89 00:04:37,360 --> 00:04:39,640 Speaker 1: get a warrant. The traditional rule is that you can't 90 00:04:39,720 --> 00:04:42,200 Speaker 1: challenge a warrant before it's executed. You have to bring 91 00:04:42,200 --> 00:04:45,160 Speaker 1: a challenge afterwards. That carried the day below, and that 92 00:04:45,200 --> 00:04:48,479 Speaker 1: was basically the state's argument before the High Court. Well, 93 00:04:48,520 --> 00:04:51,720 Speaker 1: but the you know, the third party argument issue that 94 00:04:51,760 --> 00:04:54,400 Speaker 1: you brought up earlier kind of interesting because even in 95 00:04:54,440 --> 00:04:57,919 Speaker 1: the physical world, sometimes you have documents or possessions that 96 00:04:58,040 --> 00:05:00,920 Speaker 1: might be in the in a third party's apartment or 97 00:05:00,960 --> 00:05:05,360 Speaker 1: a third party's office, and normally they can't challenge a warrant, right, 98 00:05:05,480 --> 00:05:09,000 Speaker 1: So what is it about the computer world that might 99 00:05:09,040 --> 00:05:12,880 Speaker 1: make that different? What makes that what might make that 100 00:05:13,000 --> 00:05:16,240 Speaker 1: different is that the way the government is getting the 101 00:05:16,320 --> 00:05:21,560 Speaker 1: materials is very similar to subpoena. So let me just 102 00:05:21,560 --> 00:05:23,640 Speaker 1: give you a little bit of context. There are two 103 00:05:23,760 --> 00:05:26,880 Speaker 1: basic orders that the government can get to obtain information. 104 00:05:27,240 --> 00:05:29,440 Speaker 1: One is a warrant that lets them break into your house. 105 00:05:29,760 --> 00:05:31,960 Speaker 1: The other is a subpoena, which is just a piece 106 00:05:32,000 --> 00:05:34,000 Speaker 1: of paper that says, hey, you have to come hand 107 00:05:34,080 --> 00:05:36,719 Speaker 1: over the following information to the government at the following 108 00:05:36,760 --> 00:05:39,520 Speaker 1: time and place. And the law has traditionally treated those 109 00:05:39,560 --> 00:05:42,480 Speaker 1: really differently. The government needs probable cause for a warrant. 110 00:05:42,480 --> 00:05:45,359 Speaker 1: It does not need any cause or any substantial cause 111 00:05:45,400 --> 00:05:49,160 Speaker 1: for a subpoena. And what's tricky about the way the 112 00:05:49,200 --> 00:05:53,760 Speaker 1: Internet works is that warrants are executed like subpoenas. Subpoenas 113 00:05:53,800 --> 00:05:57,080 Speaker 1: do allow pre enforcement challenge. If the government serves a 114 00:05:57,160 --> 00:06:02,440 Speaker 1: subpoena on Facebook for custom records, it's clear Facebook can 115 00:06:02,520 --> 00:06:05,719 Speaker 1: challenge that subpoena. The question is whether they can challenge 116 00:06:05,760 --> 00:06:09,440 Speaker 1: a warrant that's executed just like a subpoena or in 117 00:06:09,440 --> 00:06:12,960 Speaker 1: the case has been closely watched by social media companies, 118 00:06:13,040 --> 00:06:18,640 Speaker 1: civil libertarians, and prosecutors. Manhattan District Attorney Cy Vans personally 119 00:06:18,760 --> 00:06:22,599 Speaker 1: argue the case in Albany. How important is this decision 120 00:06:22,760 --> 00:06:26,200 Speaker 1: by a state court. It's pretty important. This would be 121 00:06:26,240 --> 00:06:30,599 Speaker 1: the first state Supreme Court or any appellate court that 122 00:06:30,680 --> 00:06:34,040 Speaker 1: has reached this issue, and it's one that's really important 123 00:06:34,320 --> 00:06:38,240 Speaker 1: to Internet providers like Facebook and Google and Yahoo. These 124 00:06:38,240 --> 00:06:40,320 Speaker 1: are companies that would really like to be in the 125 00:06:40,400 --> 00:06:43,919 Speaker 1: position of protecting the privacy of their users. Uh. And 126 00:06:43,960 --> 00:06:46,760 Speaker 1: then on the law enforcement side, they worry if we 127 00:06:46,839 --> 00:06:49,320 Speaker 1: allow these third party companies to step in and bring 128 00:06:49,360 --> 00:06:51,880 Speaker 1: these pre enforcement challenges, then we could get stuck in 129 00:06:51,880 --> 00:06:56,000 Speaker 1: litigation for months or years before we can carry out 130 00:06:56,040 --> 00:06:59,320 Speaker 1: warrants and and investigate cases. So the stakes are high, 131 00:06:59,480 --> 00:07:01,640 Speaker 1: and the pro itiers care a lot about this question. 132 00:07:01,680 --> 00:07:03,800 Speaker 1: It will be an important case to watch well. Or 133 00:07:04,000 --> 00:07:06,680 Speaker 1: it almost sounds like something that maybe we need some 134 00:07:06,720 --> 00:07:09,600 Speaker 1: statutory relief on so that people really know what the 135 00:07:09,640 --> 00:07:12,240 Speaker 1: expectations are with for the companies and for the users. 136 00:07:12,800 --> 00:07:15,600 Speaker 1: What is the right outcome here and is there a 137 00:07:15,600 --> 00:07:20,160 Speaker 1: way to do it through a legislature. So it's it's 138 00:07:20,240 --> 00:07:23,280 Speaker 1: actually a hard question. One argument would be you don't 139 00:07:23,280 --> 00:07:26,560 Speaker 1: need to have pre enforcement challenges because the providers themselves 140 00:07:26,560 --> 00:07:30,840 Speaker 1: will negotiate this with the governments anyway, So what happens 141 00:07:30,920 --> 00:07:33,960 Speaker 1: behind the scenes, government usually will serve a warrant on 142 00:07:34,000 --> 00:07:35,920 Speaker 1: the provider the provider will say, hey, this warrant is 143 00:07:36,000 --> 00:07:38,160 Speaker 1: terrible just looking at it on its face, and then 144 00:07:38,160 --> 00:07:40,040 Speaker 1: the government will say, you know, gosh, you're right, We'll 145 00:07:40,040 --> 00:07:42,120 Speaker 1: go back and we'll get another warrant. That usually happens 146 00:07:42,120 --> 00:07:45,040 Speaker 1: without any formal law. That's just kind of the practice 147 00:07:45,280 --> 00:07:48,200 Speaker 1: in terms of how these are negotiated. On the other hand, 148 00:07:48,280 --> 00:07:51,080 Speaker 1: if you you could have a formal proceeding that's allowed, 149 00:07:51,400 --> 00:07:53,520 Speaker 1: you'd want it to be something fast, and you wouldn't 150 00:07:53,560 --> 00:07:55,440 Speaker 1: want it to be a complete litigation on the on 151 00:07:55,480 --> 00:07:58,640 Speaker 1: the warrant, because I think the law enforcement side has 152 00:07:58,680 --> 00:08:02,120 Speaker 1: a good point that wouldn't want these companies to be 153 00:08:02,200 --> 00:08:06,360 Speaker 1: able to stop important investigations UH from occurring. You may 154 00:08:06,440 --> 00:08:08,239 Speaker 1: you may have a case where a warrant is needed 155 00:08:08,280 --> 00:08:10,720 Speaker 1: and you need time is of the essence, UH, And 156 00:08:10,800 --> 00:08:13,280 Speaker 1: so you wouldn't want to get cases stuck in litigation 157 00:08:13,320 --> 00:08:16,000 Speaker 1: for years while the government's just waiting for the information. 158 00:08:16,080 --> 00:08:18,520 Speaker 1: So so it's actually a pretty hard question, and I 159 00:08:18,560 --> 00:08:21,440 Speaker 1: suspect some sort of hearing, but not something that would 160 00:08:21,480 --> 00:08:23,840 Speaker 1: be a full litigation over the warrant is probably the 161 00:08:23,840 --> 00:08:26,160 Speaker 1: best way to go. I have another hard question and 162 00:08:26,280 --> 00:08:29,040 Speaker 1: thirty seconds for you to answer. It in Do you 163 00:08:29,080 --> 00:08:31,080 Speaker 1: have an inkling as to how the Court of Appeals 164 00:08:31,120 --> 00:08:34,480 Speaker 1: is likely to rule based on news reports of the 165 00:08:34,600 --> 00:08:37,280 Speaker 1: oral argument? We just did not have clear signals either 166 00:08:37,320 --> 00:08:40,120 Speaker 1: way that the justices were really interested in the issue. 167 00:08:40,200 --> 00:08:42,320 Speaker 1: Was a really active bench, but they didn't tip off 168 00:08:42,360 --> 00:08:44,240 Speaker 1: their hands. So I think the short answer is we 169 00:08:44,240 --> 00:08:46,360 Speaker 1: don't know, and we'll have to wait for the opinion. Well, 170 00:08:46,360 --> 00:08:49,319 Speaker 1: it's been wonderful having you on Bloomberg Law. That's or 171 00:08:49,440 --> 00:08:53,559 Speaker 1: In cur He's a professor at George Washington University Law School.