Broad-sweeping, Bulk Warrants in the Digital Age

Internet use among adults age 18 + has become the social norm. As of March 2014, 87% of the population (277,436,130) uses the internet. Many of these users access social media websites like Facebook. Facebook has quickly become the most widely used social media website in the United States. As of the 2014, 71% of American internet-users (196,979,652) say they utilize the social media website. Moreover, of the 71% of internet users in the United States, 70% report they use the website on a daily basis. In total, a whopping 137,885,756 Americans check or post on Facebook daily.

On July 23, 2013 the Supreme Court of New York ordered the execution of 381 search warrants aimed at Facebook users, the largest request in the website’s history, authorizing the District Attorney and investigators to seize information stored on Facebook’s servers. A gag order preventing Facebook from notifying any of its customers was also issued. These 381 warrants were identical in scope and were supported by a sealed ninety-three page affidavit from the District Attorney’s Office detailing a scheme by civil servants to defraud the Social Security System. The warrants required all information in twenty-four broad categories, basically covering every post or action the 381 users had taken on Facebook. In August of that same year, Facebook moved to quash the warrants on the grounds that they were a violation of the users’ Fourth Amendment rights. The court denied this motion stating that the website did not have proper standing due to its “Terms of User Agreement” delegating privacy decisions to the individual user. Facebook was compelled to comply with the warrants and gag order. It then appealed the decision. In June of 2014, the District Attorney indicted 62 of the charged individuals, leaving 319 people whose accounts were riffled through uncharged. The gag order, however, was lifted and the court proceedings were made public. On July 21 of this year, the New York Supreme Court Appellate Division upheld the lower court’s decision and denied Facebook’s motion to quash stating the social networking service had neither a constitutional nor statutory right to challenge the warrants’ legal sufficiency on behalf of its customers before the warrants were executed. 

Specifically, the New York Supreme Court Appellate Division explained that the Internet Service Provider (ISP) did not have statutory authority found in the Stored Communications Act (SCA) § 2703 to file pre-enforcement motions against warrants. The SCA allows for only subpoenas and court orders to be challenged prior to enforcement. This decision, while sound legal theory based on current statute, is cause for concern among privacy advocates for a couple of reasons. First, the broad, sweeping nature of the warrants enables irrelevant personal information to be seized. Second, the statutory ability of an ISP to contest subpoenas/court orders, but not search warrants.

The first point of concern is the broad nature of the warrants themselves. Probable cause for the warrants of each of the 381 users was provided by one, ninety-three page affidavit. While this is not immediate cause for concern, it is disconcerting when viewed in the light of the actual number of users charged as a result of the account seizures. While a New York judge found there was sufficient probable cause, the number of charged defendants from the search warrants was a mere 62. Assumedly, this means there was not sufficient evidence found in the other 319 user accounts and, consequently, these users had their personal correspondence and pictures seized in vein. Yet, based upon current precedent, this broad seizure of material is legal. As the Supreme Court of New York stated in the 2013 case, “the relevance or irrelevance of items seized within the scope of a search warrant may be unclear and require further investigatory steps.” This precedent would make sense in most contexts, but becomes dubious when the mass amount of data gathered is a user’s most personal information. Again, considering the small percentage of users charged via the warrants, a large amount of irrelevant personal information was undoubtedly seized. The court in 2015 even agreed that users “share more intimate personal info through their accounts than may be revealed through rummaging one’s home.” Moreover, according to Chris Sonderby, Facebook’s General Counsel, the warrants contained no date restrictions and allow the government to keep the seized data indefinitely.

This sets a concerning precedent for future mass “data dragnets” by the DA’s office considering the number of people utilizing social media, as well as the amount of personal information found on these websites. In the 2015 opinion, the court recognized that “Fourth Amendment protections are weaker in the digital context,” but then, within the same document, admitted that “Facebook users share more intimate personal info through their accounts than may be revealed through rummaging one’s home.” Thus, should stricter scrutiny be utilized for these broad electronic search warrants? Another facet that causes one to ask this question is that this situation is indicative of a growing trend by United States law enforcement. The U.S. leads the world in these types of Facebook seizures. Law enforcement in the United States utilizes Facebook seizures almost three times as much as the next country on the list. In fact, law enforcement in this country used 14,274 requests to seize 21,731 accounts from July 2014-December 2014 alone. This number is more than the four closest nations (France, UK, India, and Germany) on the list combined. 

A second point of concern arises from the statutory construction of the SCA itself. Currently, it leaves wide latitude for District Attorney Offices when they have a warrant because of the inability of an ISP to challenge them until the accounts are seized. The SCA gives three ways to obtain electronic information: (1) An administrative, grand jury or trial subpoena (see §2703(c) (2)); (2) A court order issued pursuant to § 2703(d); or (3) A search warrant (see § 2703(a)). Subpoenas are used in this context to obtain subscriber information like names, addresses, and credit card information. Court orders are used to gather transactional data (when the account is accessed, services used, and length of time online. Finally, warrants are utilized for stored electronic communications like Facebook accounts. 

The court explained that an ISP can only challenge court orders or subpoenas prior to execution, not warrants. This is per se reasonable because probable cause is required for a warrant, while “specific and articulable facts” that there are “reasonable grounds to believe” the information desired will be “relevant and material” are the only requirements for court orders and subpoenas. Yet, the warrants in this case are pertaining to personal information on a social media website; a website where the court admits “users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home.” The probable cause standard for these warrants is a relatively strong privacy safeguard, but should the SCA allow a pre-enforcement challenge when this quantity of personal information is being collected? This contention seems reasonable when such warrants involve 381 individuals and, in the end, sufficient evidence was only found for 62 of them. Without a pre-enforcement ability, an ISP is forced to let the government vitiate the privacy of its users and can only step in once the damage is done. These ISPs must either comply and lose the trust of consumers, or not comply and face contempt charges. 

The SCA, however, is not without its positive aspects. One benevolent characteristic of the SCA that the court points out is that without it, ISPs would be governed by the outdated “Third Party Doctrine” established by Smith v. Maryland (holding limited information that people voluntarily share with third-party businesses can be accessed by law enforcement without a warrant, only subpoena and prior notice are needed)¹. This 1979 decision paved the way for the NSA’s telephone metadata collection program that Snowden exposed. Ostensibly, the SCA creates privacy protections analogous to Fourth Amendment protections for digital communications stored on the internet. Thus, the passage of the SCA is certainly a step towards cementing online privacy in a world where more personal information is found online than in one’s home; yet, in its current construction, it still has room for improvement. 

Given the current social media status quo, this litigation should serve as a warning to those divulging personal information on social media. Even more important is the warning that District Attorney Offices may seize and access your accounts for an indefinite period of time. Even in the event the District Attorney Office does not find sufficient evidence to charge you with a crime, much like the 319 individuals who were not charged after their accounts were seized, there are few limitations on their access once the social media accounts are seized. 

By Joseph Collins

CLP Senior Staffer

¹(see also Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Michigan L Rev 561 [2009]).

How Real is a Facebook Threat?

The Supreme Court agreed in June 2014 to hear the case of Elonis v. United States, an important First Amendment challenge that will attempt to clarify after years of ambiguity and split decisions in the lower courts the question of when threats, specifically internet threats, should be taken seriously by the law.  The case will be heard on December 1^st of this year, and will clarify whether threats of violence made on social media sites such as Facebook, should be judged by (1) whether the speaker intended to harm anyone, or (2) whether the recipient was genuinely afraid of being harmed.  Essentially, it is a decision that will decide whether the crime should be judged by the actor’s subjective intent or the target’s subjective belief.

Online death threats are becoming all too common.  Recent examples include an 11-year-old who faced death threats through Facebook over his love of hunting, a mayor whose life was threatened by his paper boy, and hundreds of Harvard students who received emails from a sender who threatened to “shoot all of you” and “kill you individually.”

Digital Service of Process: Turning to Social Media

Technology has historically outpaced the law. The prevalence of social media throughout society indicates an inherent ability to transition methods of Service of Process in the near future. Given social media’s rapid technological advances in other fields, perhaps it will find its place within the framework of the legal system. There are already precedents being set.

After defendant Gökhan Örün, who is allegedly located in Turkey could not be located and served personally or by letter, the plaintiff, WhosHere, offered to serve process on Örün by email and through the social networking sites, Facebook and LinkedIn. On February 20^th, 2014, U.S. Magistrate Judge Thomas Rawles Jones, Jr. (Eastern District of Virginia) authorized a first-ever Service of Process by social media. Judge Jones held that, since Turkey “has not specifically objected to service by email or social media networking sites which are not explicitly listed as means of service,” under Federal Rules of Civil Procedure 4(f)(3) email, Facebook, and LinkedIn were reasonable methods of delivering the summons and complaint.

From Click to Clank: Social Media and Criminal Investigations

The gift and curse of technology advancement has made its way into the criminal justice system. In a generation where almost nothing is left private, social media sites have created a new frontier of evidence for criminal investigations.  Justin P. Murphy and Adrian Fontecilla of Crowell & Moring’s Washington, D.C. office took an in-depth look at social media evidence in criminal proceedings.  A Bloomberg Law report that summarizes their larger study and law review article reports some remarkable statistics:  “Social media use in the United States alone has increased by 356 percent since 2006.  Currently, 52 percent of Americans have at least one social media profile, more than one billion people use Facebook actively each month and Twitter has over 140 million active users posting 340 million Tweets a day.”

               

Intimidation Gone Digital: Witness and Victim Intimidation in the Age of Social Media

We live in the age of social media where much of our communication occurs through sites such as YouTube, Instagram, Twitter, and Facebook.  Phone calls and letters have been replaced by tweets, snapchats and status updates and our lives are lived for the world to see.  While such sites keep us connected and enable the type of instantaneous communication and access to information that was previously unattainable, social media has now become a vehicle for something much more sinister.  Increasingly social media is being used to intimidate victims, witnesses and criminal informants.  On November, 12, 2013, seventeen year old high school student Nasheen Anderson from East German Town, Pennsylvania was arrested and charged with witness intimidation and terroristic threats. Philadelphia police arrested the teen after he was linked to a Twitter account that named witnesses in several 2012 shootings and a June 2007 homicide.  The Twitter account contained pictures of sealed court documents.  One photo had the caption “EXPOSE ALL RATS” written below it.  Police believe that Anderson may also be behind the “rats215” Instagram account, which has since been shut down.  According to the Philadelphia Inquirer, this account revealed the identities of more than thirty witnesses to violent crimes in Philadelphia and also contained pictures, police statements and witness testimonies.

The Philadelphia District Attorney’s Office, who has described the problem of witness intimidation as reaching “near-epidemic levels,” announced that it intends to prosecute the seventeen year old as an adult.  This is just one of many recent cases where social media is being used to harass and intimidate witnesses and victims.  In October, a twenty six year old New York man was convicted on several counts of intimidating and tampering with witnesses after he posted witnesses’ testimonies and statements on Facebook.  Two of the witnesses received threats after the materials surfaced online and subsequently withdrew their testimony.  He faces up to four years in prison.  Similar cases have occurred in Philadelphia, Santa Fe, and Brooklyn.

Witness intimidation is a violation of both state and federal law.  Title 18 of the United States Code section 1512 (b) defines the crime of “tampering with a witness, victim, or an informant” as a federal crime:

           

          (b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

           

            (1) influence, delay, or prevent the testimony of any person in an official proceeding;

            (2) cause or induce any person to—

                        (A) withhold testimony, or withhold a

record, document, or other object, from an official proceeding;

                        (B) alter, destroy, mutilate, or conceal an

object with intent to impair the object’s integrity or availability for use in an official proceeding;

                        (C) evade legal process summoning that

person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(D) be absent from an official proceeding to which such person has been summoned by legal process; or

            (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release, parole, or release pending judicial proceedings; shall be fined under this title or imprisoned not more than 20 years, or both.

While witness intimidation is not a new practice, the use of social media for such ends is a new and growing trend.  According to the National Institute of Justice, physical violence, indirect intimidation, explicit or implicit threats of physical violence, property damage, and courtroom intimidation are all methods traditionally used to intimidate witnesses and prevent them from testifying.  However nowadays much of this has gone digital and people are intimidating witnesses by posting their pictures on social media sites, posting copies of witness testimonies online, and sending harassing messages and texts to victims and witnesses.  As the “anti-snitch” culture continues to grow, sites with databases exposing the identities of thousands of witness testifiers, are popping up everywhere and gaining a lot of traction.  Even more disturbing is the fact that this culture of intimidation has spread to prosecutors, jurors and even judges who are being filmed and photographed in court by associates and family members of the defendants as a means to affect the outcome of the trial.

This new form of digital intimidation is creating a slew of problems for the criminal justice system.  Often times prosecutors build the weight of their cases on witness testimony and therefore the withdrawal of such testimony is often crippling to a case.  It is typically very difficult to get witnesses to even testify to begin with especially in gang-related cases; with the growing anti-snitch movement, the pervasiveness of the social media and internet culture and the way it is being manipulated to intimidate witnesses and victims, the problem is likely to get worse before it gets better.  Intimidation through social media is growing so fast that law enforcement and the courts are scrambling to keep up.  One of the biggest hurdles they face is catching the offenders who can set up fake or anonymous accounts that are difficult to trace.  Although prosecutors have the ability to subpoena internet and social media account information, IP addresses, and phone records, even with this information it is still often extremely difficult to tie the crimes to a specific person.  Moreover, because everything is digital the effects of the intimidation and harassment truly know no bounds.  Social media has made witness intimidation possible even overseas.  For example, the Brooklyn District Attorney’s office has experienced an increase in the cases of Arab women reporting that their families abroad were threatened and intimidated through “phone calls, emails and social media postings” after filing domestic abuse charges against their spouses in the United States.

One solution that officials in the Justice Department are asking for is policy that would make public access to federal court documents online more difficult.  A few state courts are fighting to curtail digital intimidation by banning cellphones from their courtrooms.  Several courts across Massachusetts have taken this approach in response to complaints that witnesses and victims were being photographed and videotaped in court and this information was then being posted online.  In Illinois, courts in 48 out of the 102 counties have cell phone and electronic device bans and courts in Philadelphia are considering instituting similar restrictions.  Some states have even reached out to the social media sites directly, asking them to remove content that has been used to intimidate witnesses.  However with growing concerns of government interference in protected privacy areas, many social media sites have to walk the delicate line between protecting the privacy of their users and assisting with criminal investigations.

One thing that state courts can do to try to prevent digital witness and victim intimidation is to closely monitor who is going in and out of their courtrooms by having a check-in system where individuals attending court would be required to sign-in and leave their contact information with a court official.  This way if information from a trial was later used to intimidate victims and witnesses online, law enforcement agents would have a working list of possible suspects.  As a deterrence mechanism, states could also be required to post visible warning notices in all of their court buildings explaining what witness intimidation is and the possible consequences for those found guilty of the crime.  Lawyers also have a role to play in curtailing this problem.  Criminal defense attorneys can help by warning their clients about the implications of witness intimidation of any form.  The clients in turn can warn family members and associates to refrain from any form of intimidation online or otherwise.  Prosecutors and judges can help by pushing for harder sentences for those found guilty of digital intimidation thereby sending a clear message that digital intimidation cannot and will not be tolerated.

Technology and social media have become integral parts of our lives.  As digital intimidation continues to grow, so too must the methods that our criminal justice system is using to attack it.

Ifeoluwa E. Afolayan

Senior Staffer, Criminal Law Practitioner

Image from Facebook.com via Wikimedia Commons.