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Facebook seeks to block prosecutor's search warrants

Facebook Inc. is asking a New York appeals court to block the largest set of search warrants the company says it has ever received, as the tense relationship evolves between social media and law enforcement.

Lawyers for the company will appear today before a panel of five appellate judges in Manhattan to argue that the warrants, issued last year as part of a disability-fraud investigation, violate the Fourth Amendment prohibition of unreasonable search and seizure.

Courts around the country are dealing with privacy disputes involving digital communications and social-media sites such as Facebook and Twitter Inc. The companies are seeking to limit the information they must hand over to the government as their popularity increases.

Social media are increasingly being used by law enforcement, with agencies at all levels scouring postings for evidence of crimes, and the New York case gives the court a "dramatic" opportunity to decide what restrictions are needed to safeguard privacy, said Hanni Fakhoury, an attorney with the nonprofit Electronic Frontier Foundation in San Francisco.

"There is a real potential privacy problem with this very broad, very expansive search warrant that the government got in this case," said Fakhouri, whose group works to defend civil rights in the digital world. "Hopefully, the court will understand that this is going too far and that the government can get the records they need but they should do in a more limited and narrow way."

Vance's Warrants

Manhattan District Attorney Cyrus Vance Jr. obtained the warrants in July 2013, directing Menlo Park, California-based Facebook, the biggest social-media company, to turn over information from 381 customer accounts. The data included messages, photographs and comments posted on pages of friends and family.

Vance sought the information in connection with a disability-fraud probe that led this year to charges against hundreds of people accused of defrauding the government of more than $400 million. Many had worked for New York City's fire and police departments.

A total of 134 people were indicted, more than 95 of whom have agreed to plead guilty and pay more than $20 million in restitution, according to Vance's office.

The district attorney obtained a gag order blocking Facebook from informing the users that their accounts were the subject of the warrants. Almost 80 warrants were unsealed after the subjects were indicted, allowing Facebook to notify those users. More than 300 remain sealed.

Company's Appeal

A judge in September 2013 denied Facebook's request to cancel the warrants and the gag order as illegal, and the company appealed. Vance unsuccessfully sought dismissal of the appeal, which is being argued today, saying no state law allows the issuance of a search warrant to be appealed and the company is trying to suppress evidence that it had already surrendered.

Prosecutors sought details of the social-media accounts to prove suspects lied about their disabilities. Postings showed defendants riding Jet Skis, working a cannoli stand at New York's San Gennaro Festival and teaching and performing mixed martial arts.

The appeals court in September denied Vance's motion and allowed companies including Microsoft Corp., Google Inc. and Twitter Inc. to weigh in on the case, along with groups including the American Civil Liberties Union and the New York Civil Liberties Union.

Basic Information

Facebook says on its website that it discloses account details to law enforcement agencies in connection with valid subpoenas issued in criminal investigations seeking basic information such as names and email addresses.

A court order is required for the disclosure of other information such as message headers and Internet addresses, and a search warrant is needed for the contents of any account such as messages, photos and videos, Facebook said.

The warrants' targets include high school students, electricians, schoolteachers and members of the armed forces, and "are the digital equivalent of seizing everything in someone's home," Facebook said court papers. "Except here, it is not a single home but an entire neighborhood of nearly 400 homes."

The scope of the search and seizure "would be unthinkable in the physical world," the company said.

The New York Civil Liberties Union pointed to a U.S. Supreme Court ruling in June saying police must get a warrant before searching the mobile phone of a person being arrested. And search warrants must be specific, the NYCLU.

Vance argued that the Fourth Amendment doesn't apply to the case because Facebook didn't have a privacy interest in its customers' accounts, that the warrants were specific enough and that prosecutors sought the gag order only to prevent subjects from fleeing, obstructing the investigation or destroying evidence.

The case is In re 381 Search Warrants Directed to Facebook Inc., 30207-13, New York State Supreme Court, Appellate Division, First Department.

To contact the reporter on this story: Chris Dolmetsch in New York State Supreme Court in Manhattan at cdolmetschbloomberg.net. To contact the editors responsible for this story: Michael Hytha at mhythabloomberg.net. Charles Carter, Andrew Dunn

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