Yesterday I wrote about the increasing use of Facebook information in criminal cases, and prosecutors’ increasing efforts to get information from Facebook through the use of warrants. I mentioned that Facebook had challenged a group of warrants issued by a judge in New York, had lost, and had appealed that case to the appellate court. Two days ago (so the day before I wrote about it) the appellate court denied Facebook’s challenge to the warrants. The court’s opinion can be read here.
The appellate court denied Facebook’s challenge because, they found, there is really no way to challenge a warrant before its execution. From the opinion:
We now hold that Supreme Court’s summary denial of Facebook’s motion to quash the search warrants was proper because there is no constitutional or statutory right to challenge an alleged defective warrant before it is executed. The key role of the judicial officer in issuing a search warrant is described generally by the Fourth Amendment and more specifically by state statutes. None of these sources refer to an inherent authority for a defendant or anyone else to challenge an allegedly defective warrant before it is executed.
In other words, if a judge issues a warrant to access your Facebook account (or search your house, for that matter) but the warrant is defective, you can only challenge it after the police have gotten your information (or searched your house) – after your right to privacy has already been violated. And, what’s more, the only real challenge you can mount to the warrant is to have any incriminating evidence found during the search thrown out of court.
The only requirement for getting a warrant is that the police have to convince a judge that “probable cause” exists to perform the search. I would say that 97% of the time the police go and get a search warrant before any arrest is made, and often before the suspect even knows they’re a suspect. This means that the suspect doesn’t have a lawyer who could try and challenge the warrant (even though in reality, they can’t). So what’s to prevent the police from abusing this authority? Let’s check in on what the New York appellate court has to say:
[U]nder the Warrants Clause, a law enforcement official must swear, under oath, that the information contained within the search warrant is true.
Yes because human beings never lie, or tell half-truths under oath.
Moreover, the Warrants Clause requires that the search warrant contain statements or facts that form probable cause to perform the search, as well as identify what items the police intend to seize and what places the police intend to search. Any search warrant that does not contain the aforementioned requirements is per se unconstitutional and may not be issued by the court or executed by the government.
This is basically saying that search warrants can never be invalid because an invalid search warrant would be unconstitutional, and an unconstitutional warrant would never happen because that would make the warrant invalid. The fact is that the judge is supposed to act as the referee in deciding whether or not to issue a search warrant, but 97% of the time the judge only hears information and argument from one side.
But don’t think that this decision means that the New York appellate court doesn’t care about your privacy rights, to the contrary:
Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the District Attorney’s alleged right to indefinitely retain the seized accounts of the uncharged Facebook users. Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home. These bulk warrants demanded “all” communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime.
So only 16% of the people that were targeted by the Facebook warrants were ever charged with crimes. And the 84% that weren’t charged with any crime have no way to protect their privacy. Cool. But don’t worry – the appellate court appreciates your concerns.