New York Case Could Be Major Victory for Online Privacy

New York’s attempted seizure of 381 Facebook users’ account information violates the Fourth Amendment, argues an amicus brief filed by TechFreedom, Access Now, the Electronic Frontier Foundation and the Brennan Center for Justice with New York State’s highest court.

In 2013, a New York state judge issued bulk search warrants demanding that Facebook hand over “‘all’ communications in 24 broad categories from the 381 targeted accounts” — including private messages, photos, and location data. State investigators requested the data as part of an investigation into whether the users had defrauded the federal government in claiming disability benefits.

The brief argues that such digital records should be given the same level of protection as sensitive records kept in the home:

The fact that such data is held by a third-party [Internet Service Provider] like Facebook should not diminish Fourth Amendment protections. If anything, searches and seizures of data held by ISPs deserve heightened Fourth Amendment scrutiny because the aggregation and remote storage of private data greatly reduces resource constraints on law enforcement and allows for the bulk warrant tactics employed here.

The bulk warrants violate the Fourth Amendment because they fail to identify the person, place or thing to be searched with “particularity.” Copying user data constitutes a seizure under the Fourth Amendment, regardless of whether or not the data are actually reviewed.

You shouldn’t have to give up your Constitutional rights to use Facebook and other ‘cloud’ services,” said TechFreedom President Berin Szóka. “Since the 1960s, the courts have denied Fourth Amendment protections to data held by third parties. But in recent years, federal courts have started to recognize that there is essentially no difference between storing a file or message on your computer or in the cloud. This case is a golden opportunity for the court to recognize that the Constitution still matters even as technology evolves. If New York’s claims hold, users will be exposed to the kind of vague, open-ended fishing expeditions that inspired Virginia, way back in 1776, to adopt what later became the Fourth Amendment — the crown jewel of American civil liberties.”


We can be reached for comment at media@techfreedom.org. See our other work on privacy, including:

  • Tech Policy Podcast #94: Email Privacy in an Emergency
  • Our statement on the passage of the 2016 Email Privacy Act in the House
  • Berin Szóka’s blog post on the need to move forward with both email privacy and geolocation privacy in ECPA reform