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February 25, 2017

Privacy for New York Facebook Users Could be a Thing of the Past

By Michael H. Joseph

Our New York Trial Lawyers have a surplus of experience in defending our client’s Fourth Amendment rights, which protect a person against unreasonable searches and seizures. With new technology always developing and the ability to store unlimited amounts of information on a smartphone or website, the protections provided by the Fourth Amendment are constantly looked at and interpreted to see how they apply to this type of data.

This was the central issue of an argument made before New York’s High Court earlier this week after an investigation was launched by the Manhattan District Attorney’s Office into whether certain municipal employees took part in a scheme to fraudulently receive disability benefits. As part of the investigation, 381 search warrants were directed toward Facebook seeking information contained on the accounts of those municipal employees.

Facebook ultimately complied after failed attempts to quash the warrants, however, they have continued to challenge their constitutionality. Facebook’s counsel, Thomas Dupree Jr., argued that the warrants failed to state, with particularity, the things to be searched and items to be seized. He argued they were “general warrants” as they had no time restrictions or content restrictions and also failed to link the material sought to the alleged crime. Dupree fears that the warrants will establish a precedent preventing Facebook from opposing requests by other prosecutors for unreasonable requests thus hindering their subscriber’s privacy.

The Manhattan District Attorney countered by arguing Facebook lacked standing to challenge the warrants. The term “standing” refers  to a challenger’s ability to bring an action and has three requirements: (1) injury in fact, which means an invasion of a legally protected interest that is concrete and particularized, and imminent; (2) a causal relationship between the injury and the challenged conduct, which means the injury can be traced to the challenged action of the defendant; and (3) a likelihood that the injury will be redressed by a favorable decision. Simply put, the individual bringing the action must suffer some sort of injury if the relief sought is not granted by the court.

The D.A.’s position is that Facebook would not be injured through the issuance of warrants and disclosure of user account information as the users are the ones who would potentially have their privacy infringed upon, not Facebook itself. Manhattan District Attorney Vance conceded that the individuals will undoubtedly feel as though their privacy was invaded, but argued law enforcement is “going to be bumping up against people’s privacy,” and stated, “that is the nature of what we do.”

The Court alluded to the idea that a person’s ability to maintain intimate details and nearly unlimited amounts of information on electronic devices or “cloud” services may call for a “different consideration or contextualization of these constitutional protections.” The Court is expected to rule on this matter in late march and which ever way the court rules this issue will without question continue to expand as new technology develops.  Our Manhattan criminal defense lawyers know that the government is constantly monitoring social media for evidence of people posting criminal activity and checking the social media accounts of targets of investigations.

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