Cell Phone Privacy versus Facebook Privacy

Melissa C Jackson
Hon. Melissa C. Jackson

On Wednesday of last week the New York Supreme Court – the lowest court in the New York system – unsealed a ruling that it had issued on September 17, 2013, in a case involving Facebook. The ruling denied a motion by Facebook to quash search warrants that the Manhattan prosecutors’ office had obtained to allow them to have access to Facebook content registered to 381 users of the social media website. The materials being sought included photos, private messages to other Facebook users, their “likes” and other stored information. In addition, the search warrants precluded Facebook from notifying the targeted users that it was being asked to turn over their personal information.

These search warrants necessarily put Facebook’s administrators in an awkward position. Facebook knew that it likely did not have standing to contest the disclosure since the information being sought was stored with them but did not belong to them. Nor would Facebook be harmed by turning over the requested information. Facebook, however, felt it had to defend its users’ rights since users would have no way of mounting a defense if they were not notified that authorities were seeking to access their information. Facebook did not have a dog in the substantive fight (between their users and authorities) but it arguably would suffer some harm if its users thought that their information was protected and later learned it had been accessed without their knowledge.

So Facebook sought to quash the search warrants. Although the court’s decision was sealed in September, it was released on Wednesday of this week. Here is how the justice herself, Melissa C. Jackson, summarized her ruling.

NYSC on Facebook warrant

Question: Did Facebook appeal the ruling? Since nearly nine months have passed, it might seem that no appeal was or will be filed. After all, we have heard nothing about it until now. However, with the gag order lifted and the ruling made public, Facebook asserted on Thursday that it is pursuing this case in the appeals courts of New York. In (of all places) a Facebook post, the Facebook Security personnel have posted their version of the story and explained how deeply they value and want to protect their users’ private information.

The timing of the New York  justice’s release of this information is interesting. It is not a coincidence that it came on the heels of the Supreme Court’s decision in Riley v. California, which was released on Wednesday of last week and which is known as the cell phone right-to-privacy case. In that case (and another similar case, United States v. Wurie, which was consolidated into the decision), which came out on Monday of this past week, the Supreme Court essentially said that police officers must secure a warrant signed by a judge before they can search through a detained person’s cell phone. Up until then, police had argued that such a search was part of the in-plain-view doctrine, and that if the phone was visible it was not protected. Just as they can look in a wallet for ID, they asserted, thy should be able to search your phone. But the Supreme Court unanimously put an end to that power play.

“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life,” Roberts said.

The court chose not to extend earlier rulings that allow police to empty a suspect’s pockets and examine whatever they find to ensure officers’ safety and prevent the destruction of evidence.

The Obama administration and the state of California, defending the cellphone searches, said cellphones should have no greater protection from a search than anything else police find.

But the defendants in these cases, backed by civil libertarians, librarians and news media groups, argued that cellphones, especially smartphones, are increasingly powerful computers that can store troves of sensitive personal information.

When this decision came out, the justice in New York in the Facebook case probably wanted to make sure that the case in her court was distinguished from the facts of the Supreme Court cases (Riley and Wurie). It is likely she released the order to show that, whereas the police had not obtained a search warrant in the cell phone case, in the Facebook case the Manhattan prosecutors had gotten a warrant for the release of the account information for the 381 members.

Regardless of how this case ultimately turns out, Facebook comes out a winner. If the company should win with a decision holding that private Facebook content is not accessible to authorities, then that would be good for its users as well. However, that outcome is about as likely to occur as snow in Haiti in July. On the other hand, when if Facebook loses, it still can assert it has clean hands if any other authorities get warrants to access members’ information. Facebook can point to the court ruling and say that they have no choice when presented with a warrant.

In reality, if the the ruling holds up on appeal, it really will not be a problem for Facebook. The accounts people set up are free, so if anyone objects to the prospect of having their information available to authorities, then the loss of several thousand members is not a big deal. After all, Facebook has about 1.28 billion active users worldwide. Does anyone have a reasonable expectation of privacy when it comes to any social media in the mass market business? After all, social media is, by design, a means of communicating and connecting with other people. Maintaining complete privacy or anonymity in such forums is all but impossible.

In the wake of the Facebook case being filed,  the website’s security department decided to publish reports on how many governmental requests they have received for members’ records. The two reports published so far on the website–for the two halves of 2013–give six months of data each. Of the total 54,254 requests from around the world that were received in calendar year 2013, approximately 34,o00 were from within the United States (federal and state requests). That is an impressive 45% of the total. Rounding out the top ten countries were:

Country           Requests for user data   User accounts referenced
United States                     34,000                         39,000
India                                     6800                           8900
United Kingdom                   3900                            4600
Germany                               3600                            4000
Italy                                     3400                            4900
France                                  3200                            3400
Brazil                                    1900                            2500
Australia                              1100                            1200
Spain                                      900                              1500
Poland                                   450                               350

Notice that government sources in the United States made more requests than the next nine countries combined. It is difficult to know the significance of these statistics. Legal systems vary from country to country, as do the percentages of citizens using Facebook in each country. What will be interesting to see is how this data changes over the next few years.

Another interesting item in the second half of 2013 report is the number of content restriction requests by country. Here is how Facebook describes the content restriction request.

Government Requests to Restrict Access to Content

When governments believe that something on the Internet violates their laws, they may contact companies like Facebook to restrict access to that content.

Requests are scrutinized to determine if the specified content does indeed violate local laws. If, after a thorough legal analysis, we determine content appears to violate local law, then we make it unavailable in the relevant country or territory.

We have included in this report instances in which we have removed content that governments have identified as illegal, including those instances that may have been brought to our attention by non-government entities, such as NGOs or charities. For example, Holocaust denial is illegal in Germany, and so if it is reported to us we will restrict this content for people in Germany.

The following list show all of the countries that requested some aspect of Facebook content be restricted in that country during the second half of 2013, along with the number of such requests.

India                         4765
Turkey                      2014
Pakistan                    162
Israel                          113
Germany                     84
France                         80
Austria                         78
Australia                       48
United Arab Emirate      12
Italy                                5
Russia                             4
United Kingdom              3
Bangladesh                      3

Perhaps our readers will have insight into why India is the leader with regard to content restriction requests. No specifics are given as to the reasons for the requests, which is to be expected. Facebook reports no requests for content restriction from authorities in the United States. It is likely that some countries have developed ways to block all Facebook content within the territories that they can control, eliminating the need to request a restriction from Facebook.

What all of this comes down to is that the courts recognize an expectation of privacy for individuals with regard to the materials and information that they entrust to Facebook and which they store on their phones. Authorities who suspect someone of committing a crime will most likely be able to get a warrant signed quickly to access the social media website and search their telephones. Both Facebook and cell phones provide enormous potential for finding witnesses or even admissions or other incriminating evidence. For this reason, individuals should be careful about what they store on these forums. Once posted or stored, erasing will not get rid of the information. And even a hard drive crash will not offer protection from discovery.

Unless, of course, you are the IRS.

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Ava Gardner