Speaker 1: You're listening to Bloomberg Law. I'm June Gross with Michael Best.
Speaker 1: Facebook took its case challenging search warrants for user accounts
Speaker 1: to New York State's highest court. The Manhattan District Attorney
Speaker 1: sent the social networking site three search warrants in in
Speaker 1: connection with an investigation against retired New York City police
Speaker 1: and firefighters for social security fraud in the millions of dollars.
Speaker 1: Facebook challenge the warrants, but lower courts sided with prosecutors,
Speaker 1: ruling that Facebook did not have legal standing to object
Speaker 1: since the target was information about possible suspects, not about Facebook.
Speaker 1: Facebook turned over the data, but has continued to contest
Speaker 1: the actions of prosecutors. Our guest is or in cur
Speaker 1: He is a professor at George Washington University Law School.
Speaker 1: Or in What was Facebook's argument as to why it
Speaker 1: should be able to challenge the search warrants issued by
Speaker 1: a judge? Facebook has two different arguments. One argument they
Speaker 1: made is that the statute that governs access to warrants
Speaker 1: for email accounts gives them that right. And then the
Speaker 1: second argument they had is that the Fourth Amendment of
Speaker 1: the Constitution allows them to represent their users and stand
Speaker 1: in form for their position and and challenge the warrants
Speaker 1: as if they were the users. What explain your position
Speaker 1: on those arguments? Are they good arguments? So? I think, uh,
Speaker 1: I think they're not great arguments, but that Facebook has
Speaker 1: a good argument that maybe is implicit in what it's saying,
Speaker 1: but it's not clear. So let me let me take
Speaker 1: you through that. I think the statute itself probably does
Speaker 1: not grant Facebook the ability to challenge the warrants. Uh.
Speaker 1: The statute says that they can challenge subpoenas, but it
Speaker 1: does not refer to warrants just in terms of the
Speaker 1: text of the statute. Uh. Probably Facebook can't stand in
Speaker 1: the position of its users to bring a Fourth Amendment
Speaker 1: challenge because the users themselves don't have a right to
Speaker 1: bring a Fourth Amendment challenge. Under the Fourth Amendment, ordinarily,
Speaker 1: a user has to wait until a search occurs pursuing
Speaker 1: to a warrant and then bring a legal challenge, and
Speaker 1: Facebook wants to bring an enforcement action before there's before
Speaker 1: the warrant is executed. On the other hand, Facebook does
Speaker 1: have a good claim that it has a right to
Speaker 1: legal review of the validity of the warrant because of
Speaker 1: a matter of due process. It's due process right in
Speaker 1: the Constitution is to challenge a warrant that's trying to
Speaker 1: bind Facebook of this long term, long principle of constitutional
Speaker 1: law that you can't be bound by a court order
Speaker 1: without the right to challenge it. And we'll see if
Speaker 1: that carries the day or in. You know, those are
Speaker 1: some very complicated ways of looking at it, actually, and
Speaker 1: you know, the d A's office, I think the District
Speaker 1: Attorney Evans in New York actually argued this himself. Uh,
Speaker 1: they're asserting that, look, this is just like if we
Speaker 1: had a search warrant for a box of somebody's papers
Speaker 1: at home. It just happens to be stuff that's stored
Speaker 1: in a server in another company that it's it's six
Speaker 1: or one, half a dozen the other and we should
Speaker 1: be able to do this. And Facebook is saying, look,
Speaker 1: it's very private information, and you know, these are things
Speaker 1: the most personal details that people have. Isn't this just
Speaker 1: another outgrowth of the fact that the law really hasn't
Speaker 1: and that it really hasn't figured out how to deal
Speaker 1: with the idea that we put so much of our
Speaker 1: personal information onto third party computer servers. Now I don't
Speaker 1: think it's so much that the law hasn't caught up
Speaker 1: as that the law isn't sure of how to treat
Speaker 1: the problem. So here's what's different. When the government wants
Speaker 1: to search your house, they get a warrant and they
Speaker 1: break down your door and they search your house. They
Speaker 1: don't get somebody's permission, They don't go through your landlord,
Speaker 1: they don't go through anyone. They just do it right.
Speaker 1: They do it forcibly in a physical world. On the
Speaker 1: other hand, when they get a warrant, when the government
Speaker 1: gets a warrant to search an email account, they don't
Speaker 1: break into the email server. They don't themselves, you know,
Speaker 1: go to Google and and and break into its servers. Instead,
Speaker 1: they work with the company, the third party provider Facebook, Google,
Speaker 1: Yahoo and the like and say, hey, you get us
Speaker 1: the information on our behalf. And the question is does
Speaker 1: that change things or not. Does that introduction of the
Speaker 1: big third party company that's in charge of the account
Speaker 1: mean that there's a new person who can step in
Speaker 1: and say, hey, wait, we don't think this is lawful,
Speaker 1: or do you treat it just like a traditional warrant,
Speaker 1: which you know, if you if the police execute a
Speaker 1: warrant at your door. You can't stop them and say, hey,
Speaker 1: wait a minute, I don't think this warrant is lawful.
Speaker 1: You've got to get out of the way while they
Speaker 1: search your house or in the district attorney's office. Has
Speaker 1: won at both lower courts. What was their winning argument.
Speaker 1: The winning argument was that it was that that warrants
Speaker 1: or warrants basically that the law requires the government to
Speaker 1: get a warrant. The traditional rule is that you can't
Speaker 1: challenge a warrant before it's executed. You have to bring
Speaker 1: a challenge afterwards. That carried the day below, and that
Speaker 1: was basically the state's argument before the High Court. Well,
Speaker 1: but the you know, the third party argument issue that
Speaker 1: you brought up earlier kind of interesting because even in
Speaker 1: the physical world, sometimes you have documents or possessions that
Speaker 1: might be in the in a third party's apartment or
Speaker 1: a third party's office, and normally they can't challenge a warrant, right,
Speaker 1: So what is it about the computer world that might
Speaker 1: make that different? What makes that what might make that
Speaker 1: different is that the way the government is getting the
Speaker 1: materials is very similar to subpoena. So let me just
Speaker 1: give you a little bit of context. There are two
Speaker 1: basic orders that the government can get to obtain information.
Speaker 1: One is a warrant that lets them break into your house.
Speaker 1: The other is a subpoena, which is just a piece
Speaker 1: of paper that says, hey, you have to come hand
Speaker 1: over the following information to the government at the following
Speaker 1: time and place. And the law has traditionally treated those
Speaker 1: really differently. The government needs probable cause for a warrant.
Speaker 1: It does not need any cause or any substantial cause
Speaker 1: for a subpoena. And what's tricky about the way the
Speaker 1: Internet works is that warrants are executed like subpoenas. Subpoenas
Speaker 1: do allow pre enforcement challenge. If the government serves a
Speaker 1: subpoena on Facebook for custom records, it's clear Facebook can
Speaker 1: challenge that subpoena. The question is whether they can challenge
Speaker 1: a warrant that's executed just like a subpoena or in
Speaker 1: the case has been closely watched by social media companies,
Speaker 1: civil libertarians, and prosecutors. Manhattan District Attorney Cy Vans personally
Speaker 1: argue the case in Albany. How important is this decision
Speaker 1: by a state court. It's pretty important. This would be
Speaker 1: the first state Supreme Court or any appellate court that
Speaker 1: has reached this issue, and it's one that's really important
Speaker 1: to Internet providers like Facebook and Google and Yahoo. These
Speaker 1: are companies that would really like to be in the
Speaker 1: position of protecting the privacy of their users. Uh. And
Speaker 1: then on the law enforcement side, they worry if we
Speaker 1: allow these third party companies to step in and bring
Speaker 1: these pre enforcement challenges, then we could get stuck in
Speaker 1: litigation for months or years before we can carry out
Speaker 1: warrants and and investigate cases. So the stakes are high,
Speaker 1: and the pro itiers care a lot about this question.
Speaker 1: It will be an important case to watch well. Or
Speaker 1: it almost sounds like something that maybe we need some
Speaker 1: statutory relief on so that people really know what the
Speaker 1: expectations are with for the companies and for the users.
Speaker 1: What is the right outcome here and is there a
Speaker 1: way to do it through a legislature. So it's it's
Speaker 1: actually a hard question. One argument would be you don't
Speaker 1: need to have pre enforcement challenges because the providers themselves
Speaker 1: will negotiate this with the governments anyway, So what happens
Speaker 1: behind the scenes, government usually will serve a warrant on
Speaker 1: the provider the provider will say, hey, this warrant is
Speaker 1: terrible just looking at it on its face, and then
Speaker 1: the government will say, you know, gosh, you're right, We'll
Speaker 1: go back and we'll get another warrant. That usually happens
Speaker 1: without any formal law. That's just kind of the practice
Speaker 1: in terms of how these are negotiated. On the other hand,
Speaker 1: if you you could have a formal proceeding that's allowed,
Speaker 1: you'd want it to be something fast, and you wouldn't
Speaker 1: want it to be a complete litigation on the on
Speaker 1: the warrant, because I think the law enforcement side has
Speaker 1: a good point that wouldn't want these companies to be
Speaker 1: able to stop important investigations UH from occurring. You may
Speaker 1: you may have a case where a warrant is needed
Speaker 1: and you need time is of the essence, UH, And
Speaker 1: so you wouldn't want to get cases stuck in litigation
Speaker 1: for years while the government's just waiting for the information.
Speaker 1: So so it's actually a pretty hard question, and I
Speaker 1: suspect some sort of hearing, but not something that would
Speaker 1: be a full litigation over the warrant is probably the
Speaker 1: best way to go. I have another hard question and
Speaker 1: thirty seconds for you to answer. It in Do you
Speaker 1: have an inkling as to how the Court of Appeals
Speaker 1: is likely to rule based on news reports of the
Speaker 1: oral argument? We just did not have clear signals either
Speaker 1: way that the justices were really interested in the issue.
Speaker 1: Was a really active bench, but they didn't tip off
Speaker 1: their hands. So I think the short answer is we
Speaker 1: don't know, and we'll have to wait for the opinion. Well,
Speaker 1: it's been wonderful having you on Bloomberg Law. That's or
Speaker 1: In cur He's a professor at George Washington University Law School.