WEBVTT - Facebook Fight Digital Search Warrant Rules (Audio) 0:00:00.040 --> 0:00:03.360 You're listening to Bloomberg Law. I'm June Gross with Michael Best. 0:00:03.880 --> 0:00:07.520 Facebook took its case challenging search warrants for user accounts 0:00:07.520 --> 0:00:10.960 to New York State's highest court. The Manhattan District Attorney 0:00:11.039 --> 0:00:16.079 sent the social networking site three search warrants in in 0:00:16.120 --> 0:00:19.640 connection with an investigation against retired New York City police 0:00:19.680 --> 0:00:23.520 and firefighters for social security fraud in the millions of dollars. 0:00:23.920 --> 0:00:27.840 Facebook challenge the warrants, but lower courts sided with prosecutors, 0:00:28.080 --> 0:00:31.400 ruling that Facebook did not have legal standing to object 0:00:31.520 --> 0:00:36.080 since the target was information about possible suspects, not about Facebook. 0:00:36.560 --> 0:00:39.800 Facebook turned over the data, but has continued to contest 0:00:39.840 --> 0:00:43.360 the actions of prosecutors. Our guest is or in cur 0:00:43.520 --> 0:00:46.680 He is a professor at George Washington University Law School. 0:00:47.360 --> 0:00:50.199 Or in What was Facebook's argument as to why it 0:00:50.240 --> 0:00:53.040 should be able to challenge the search warrants issued by 0:00:53.040 --> 0:00:57.080 a judge? Facebook has two different arguments. One argument they 0:00:57.080 --> 0:01:00.920 made is that the statute that governs access to warrants 0:01:00.920 --> 0:01:03.680 for email accounts gives them that right. And then the 0:01:03.720 --> 0:01:06.480 second argument they had is that the Fourth Amendment of 0:01:06.600 --> 0:01:11.639 the Constitution allows them to represent their users and stand 0:01:11.640 --> 0:01:14.800 in form for their position and and challenge the warrants 0:01:14.840 --> 0:01:18.640 as if they were the users. What explain your position 0:01:18.680 --> 0:01:23.600 on those arguments? Are they good arguments? So? I think, uh, 0:01:23.640 --> 0:01:26.520 I think they're not great arguments, but that Facebook has 0:01:26.520 --> 0:01:29.160 a good argument that maybe is implicit in what it's saying, 0:01:29.200 --> 0:01:30.920 but it's not clear. So let me let me take 0:01:30.959 --> 0:01:34.000 you through that. I think the statute itself probably does 0:01:34.040 --> 0:01:37.360 not grant Facebook the ability to challenge the warrants. Uh. 0:01:37.520 --> 0:01:41.640 The statute says that they can challenge subpoenas, but it 0:01:41.680 --> 0:01:43.800 does not refer to warrants just in terms of the 0:01:43.840 --> 0:01:48.080 text of the statute. Uh. Probably Facebook can't stand in 0:01:48.120 --> 0:01:50.480 the position of its users to bring a Fourth Amendment 0:01:50.560 --> 0:01:53.600 challenge because the users themselves don't have a right to 0:01:53.640 --> 0:01:56.680 bring a Fourth Amendment challenge. Under the Fourth Amendment, ordinarily, 0:01:56.680 --> 0:01:59.120 a user has to wait until a search occurs pursuing 0:01:59.200 --> 0:02:01.440 to a warrant and then bring a legal challenge, and 0:02:01.440 --> 0:02:05.520 Facebook wants to bring an enforcement action before there's before 0:02:05.560 --> 0:02:08.840 the warrant is executed. On the other hand, Facebook does 0:02:08.919 --> 0:02:11.160 have a good claim that it has a right to 0:02:11.280 --> 0:02:14.000 legal review of the validity of the warrant because of 0:02:14.080 --> 0:02:16.239 a matter of due process. It's due process right in 0:02:16.400 --> 0:02:18.920 the Constitution is to challenge a warrant that's trying to 0:02:18.960 --> 0:02:22.960 bind Facebook of this long term, long principle of constitutional 0:02:23.040 --> 0:02:25.480 law that you can't be bound by a court order 0:02:25.720 --> 0:02:27.600 without the right to challenge it. And we'll see if 0:02:27.639 --> 0:02:31.200 that carries the day or in. You know, those are 0:02:31.280 --> 0:02:33.920 some very complicated ways of looking at it, actually, and 0:02:33.960 --> 0:02:36.040 you know, the d A's office, I think the District 0:02:36.080 --> 0:02:39.720 Attorney Evans in New York actually argued this himself. Uh, 0:02:39.760 --> 0:02:42.880 they're asserting that, look, this is just like if we 0:02:43.000 --> 0:02:45.200 had a search warrant for a box of somebody's papers 0:02:45.240 --> 0:02:48.200 at home. It just happens to be stuff that's stored 0:02:48.240 --> 0:02:51.080 in a server in another company that it's it's six 0:02:51.160 --> 0:02:52.760 or one, half a dozen the other and we should 0:02:52.760 --> 0:02:55.280 be able to do this. And Facebook is saying, look, 0:02:55.280 --> 0:02:57.919 it's very private information, and you know, these are things 0:02:58.000 --> 0:03:02.160 the most personal details that people have. Isn't this just 0:03:02.240 --> 0:03:05.800 another outgrowth of the fact that the law really hasn't 0:03:05.919 --> 0:03:08.040 and that it really hasn't figured out how to deal 0:03:08.160 --> 0:03:11.120 with the idea that we put so much of our 0:03:11.120 --> 0:03:15.720 personal information onto third party computer servers. Now I don't 0:03:15.720 --> 0:03:17.840 think it's so much that the law hasn't caught up 0:03:18.240 --> 0:03:20.480 as that the law isn't sure of how to treat 0:03:20.600 --> 0:03:23.920 the problem. So here's what's different. When the government wants 0:03:23.919 --> 0:03:26.040 to search your house, they get a warrant and they 0:03:26.080 --> 0:03:27.960 break down your door and they search your house. They 0:03:27.960 --> 0:03:30.639 don't get somebody's permission, They don't go through your landlord, 0:03:30.680 --> 0:03:33.040 they don't go through anyone. They just do it right. 0:03:33.360 --> 0:03:36.000 They do it forcibly in a physical world. On the 0:03:36.040 --> 0:03:38.000 other hand, when they get a warrant, when the government 0:03:38.000 --> 0:03:40.360 gets a warrant to search an email account, they don't 0:03:40.520 --> 0:03:43.920 break into the email server. They don't themselves, you know, 0:03:44.000 --> 0:03:47.760 go to Google and and and break into its servers. Instead, 0:03:47.800 --> 0:03:52.120 they work with the company, the third party provider Facebook, Google, 0:03:52.280 --> 0:03:54.920 Yahoo and the like and say, hey, you get us 0:03:54.960 --> 0:03:58.240 the information on our behalf. And the question is does 0:03:58.320 --> 0:04:01.800 that change things or not. Does that introduction of the 0:04:01.840 --> 0:04:04.520 big third party company that's in charge of the account 0:04:05.120 --> 0:04:08.360 mean that there's a new person who can step in 0:04:08.800 --> 0:04:10.920 and say, hey, wait, we don't think this is lawful, 0:04:11.440 --> 0:04:13.560 or do you treat it just like a traditional warrant, 0:04:13.680 --> 0:04:15.720 which you know, if you if the police execute a 0:04:15.720 --> 0:04:18.120 warrant at your door. You can't stop them and say, hey, 0:04:18.120 --> 0:04:19.800 wait a minute, I don't think this warrant is lawful. 0:04:19.960 --> 0:04:21.400 You've got to get out of the way while they 0:04:21.400 --> 0:04:25.600 search your house or in the district attorney's office. Has 0:04:25.760 --> 0:04:29.560 won at both lower courts. What was their winning argument. 0:04:31.040 --> 0:04:34.000 The winning argument was that it was that that warrants 0:04:34.040 --> 0:04:37.320 or warrants basically that the law requires the government to 0:04:37.360 --> 0:04:39.640 get a warrant. The traditional rule is that you can't 0:04:39.720 --> 0:04:42.200 challenge a warrant before it's executed. You have to bring 0:04:42.200 --> 0:04:45.160 a challenge afterwards. That carried the day below, and that 0:04:45.200 --> 0:04:48.479 was basically the state's argument before the High Court. Well, 0:04:48.520 --> 0:04:51.720 but the you know, the third party argument issue that 0:04:51.760 --> 0:04:54.400 you brought up earlier kind of interesting because even in 0:04:54.440 --> 0:04:57.919 the physical world, sometimes you have documents or possessions that 0:04:58.040 --> 0:05:00.920 might be in the in a third party's apartment or 0:05:00.960 --> 0:05:05.360 a third party's office, and normally they can't challenge a warrant, right, 0:05:05.480 --> 0:05:09.000 So what is it about the computer world that might 0:05:09.040 --> 0:05:12.880 make that different? What makes that what might make that 0:05:13.000 --> 0:05:16.240 different is that the way the government is getting the 0:05:16.320 --> 0:05:21.560 materials is very similar to subpoena. So let me just 0:05:21.560 --> 0:05:23.640 give you a little bit of context. There are two 0:05:23.760 --> 0:05:26.880 basic orders that the government can get to obtain information. 0:05:27.240 --> 0:05:29.440 One is a warrant that lets them break into your house. 0:05:29.760 --> 0:05:31.960 The other is a subpoena, which is just a piece 0:05:32.000 --> 0:05:34.000 of paper that says, hey, you have to come hand 0:05:34.080 --> 0:05:36.719 over the following information to the government at the following 0:05:36.760 --> 0:05:39.520 time and place. And the law has traditionally treated those 0:05:39.560 --> 0:05:42.480 really differently. The government needs probable cause for a warrant. 0:05:42.480 --> 0:05:45.359 It does not need any cause or any substantial cause 0:05:45.400 --> 0:05:49.160 for a subpoena. And what's tricky about the way the 0:05:49.200 --> 0:05:53.760 Internet works is that warrants are executed like subpoenas. Subpoenas 0:05:53.800 --> 0:05:57.080 do allow pre enforcement challenge. If the government serves a 0:05:57.160 --> 0:06:02.440 subpoena on Facebook for custom records, it's clear Facebook can 0:06:02.520 --> 0:06:05.719 challenge that subpoena. The question is whether they can challenge 0:06:05.760 --> 0:06:09.440 a warrant that's executed just like a subpoena or in 0:06:09.440 --> 0:06:12.960 the case has been closely watched by social media companies, 0:06:13.040 --> 0:06:18.640 civil libertarians, and prosecutors. Manhattan District Attorney Cy Vans personally 0:06:18.760 --> 0:06:22.599 argue the case in Albany. How important is this decision 0:06:22.760 --> 0:06:26.200 by a state court. It's pretty important. This would be 0:06:26.240 --> 0:06:30.599 the first state Supreme Court or any appellate court that 0:06:30.680 --> 0:06:34.040 has reached this issue, and it's one that's really important 0:06:34.320 --> 0:06:38.240 to Internet providers like Facebook and Google and Yahoo. These 0:06:38.240 --> 0:06:40.320 are companies that would really like to be in the 0:06:40.400 --> 0:06:43.919 position of protecting the privacy of their users. Uh. And 0:06:43.960 --> 0:06:46.760 then on the law enforcement side, they worry if we 0:06:46.839 --> 0:06:49.320 allow these third party companies to step in and bring 0:06:49.360 --> 0:06:51.880 these pre enforcement challenges, then we could get stuck in 0:06:51.880 --> 0:06:56.000 litigation for months or years before we can carry out 0:06:56.040 --> 0:06:59.320 warrants and and investigate cases. So the stakes are high, 0:06:59.480 --> 0:07:01.640 and the pro itiers care a lot about this question. 0:07:01.680 --> 0:07:03.800 It will be an important case to watch well. Or 0:07:04.000 --> 0:07:06.680 it almost sounds like something that maybe we need some 0:07:06.720 --> 0:07:09.600 statutory relief on so that people really know what the 0:07:09.640 --> 0:07:12.240 expectations are with for the companies and for the users. 0:07:12.800 --> 0:07:15.600 What is the right outcome here and is there a 0:07:15.600 --> 0:07:20.160 way to do it through a legislature. So it's it's 0:07:20.240 --> 0:07:23.280 actually a hard question. One argument would be you don't 0:07:23.280 --> 0:07:26.560 need to have pre enforcement challenges because the providers themselves 0:07:26.560 --> 0:07:30.840 will negotiate this with the governments anyway, So what happens 0:07:30.920 --> 0:07:33.960 behind the scenes, government usually will serve a warrant on 0:07:34.000 --> 0:07:35.920 the provider the provider will say, hey, this warrant is 0:07:36.000 --> 0:07:38.160 terrible just looking at it on its face, and then 0:07:38.160 --> 0:07:40.040 the government will say, you know, gosh, you're right, We'll 0:07:40.040 --> 0:07:42.120 go back and we'll get another warrant. That usually happens 0:07:42.120 --> 0:07:45.040 without any formal law. That's just kind of the practice 0:07:45.280 --> 0:07:48.200 in terms of how these are negotiated. On the other hand, 0:07:48.280 --> 0:07:51.080 if you you could have a formal proceeding that's allowed, 0:07:51.400 --> 0:07:53.520 you'd want it to be something fast, and you wouldn't 0:07:53.560 --> 0:07:55.440 want it to be a complete litigation on the on 0:07:55.480 --> 0:07:58.640 the warrant, because I think the law enforcement side has 0:07:58.680 --> 0:08:02.120 a good point that wouldn't want these companies to be 0:08:02.200 --> 0:08:06.360 able to stop important investigations UH from occurring. You may 0:08:06.440 --> 0:08:08.239 you may have a case where a warrant is needed 0:08:08.280 --> 0:08:10.720 and you need time is of the essence, UH, And 0:08:10.800 --> 0:08:13.280 so you wouldn't want to get cases stuck in litigation 0:08:13.320 --> 0:08:16.000 for years while the government's just waiting for the information. 0:08:16.080 --> 0:08:18.520 So so it's actually a pretty hard question, and I 0:08:18.560 --> 0:08:21.440 suspect some sort of hearing, but not something that would 0:08:21.480 --> 0:08:23.840 be a full litigation over the warrant is probably the 0:08:23.840 --> 0:08:26.160 best way to go. I have another hard question and 0:08:26.280 --> 0:08:29.040 thirty seconds for you to answer. It in Do you 0:08:29.080 --> 0:08:31.080 have an inkling as to how the Court of Appeals 0:08:31.120 --> 0:08:34.480 is likely to rule based on news reports of the 0:08:34.600 --> 0:08:37.280 oral argument? We just did not have clear signals either 0:08:37.320 --> 0:08:40.120 way that the justices were really interested in the issue. 0:08:40.200 --> 0:08:42.320 Was a really active bench, but they didn't tip off 0:08:42.360 --> 0:08:44.240 their hands. So I think the short answer is we 0:08:44.240 --> 0:08:46.360 don't know, and we'll have to wait for the opinion. Well, 0:08:46.360 --> 0:08:49.319 it's been wonderful having you on Bloomberg Law. That's or 0:08:49.440 --> 0:08:53.559 In cur He's a professor at George Washington University Law School.