ANOTHER LAWSUIT BY AN INTERNET GIANT AGAINST A POLICE SEARCH OF COMMUNICATION RECORDS

Communication service providers have traditionally maintained a healthy skepticism towards law enforcement requests for subscriber information. An important part of the service provider’s job is to protect subscriber privacy.

On the other hand, certain Internet giants have increasingly refused to comply with law enforcement search warrants, subpoenas, and other instruments of due process. Google, Microsoft, Facebook, Twitter and others have raised a variety of novel objections to the legal demands and defiantly filed court appeals even after losing repeatedly before lower-court judges. They have also made a habit of filing friend-of-the-court briefs, called “amicus briefs,” in each other’s judicial battles against criminal investigators.

The Facebook Warrant

In one case Facebook reacted so antagonistically to a criminal warrant for user records that it tried to claim Fourth Amendment rights reserved for criminal suspects, as if Facebook itself were the target of the probe. That New York state proceeding started in July of 2013. As of July 21st of this year Facebook’s protest suffered three court dismissals, essentially due to lack of standing.

Nevertheless, on August 11th Facebook submitted another appeal. Google, Microsoft, Twitter and Yelp joined the fray by filing amicus briefs agreeing with Facebook. (With competitors like that, who needs friends?) Meanwhile, it remains unknown how much longer the criminal investigation will be delayed.

The Need for the Warrant

The warrant served on Facebook did not involve a violent crime. Investigators were analyzing a pattern of fraud against the Social Security Administration. Hundreds of individuals had collected disability benefits based on claims that they were too mentally impaired to work. Meanwhile the Facebook pages of the supposedly-debilitated people showed they continued to lead full and active lives. One flew helicopters; another practiced martial arts; and another traveled extensively overseas. So far 108 of the suspects have pleaded guilty.

In cases of violent crime the need for a warrant may be more urgent. The cops may be trying to find a murderer or stop a murder in progress.

Service Provider Neutrality

The law of criminal procedure regards communication service providers as neutral third parties to the investigations of criminal suspects on their networks. Neutrality means the service provider is not expected to play the role of crime fighter or criminal defendant. Providers must have the legal expertise to validate subpoenas, search warrants and other instruments of due process. However, that requirement does not obligate them to make new law.

In those cases where the validation expert finds a due process request is valid, he or she should disclose nothing more than what the order requires. Conversely, if the expert finds the document is defective, he or she should know how to raise the issue with the case agent and have the defect cured without triggering a legal war. Agents would rather cure a defective order than see the resulting evidence rejected by the prosecutor or suppressed by the judge.

In any event, most service providers lack the deep-pocket resources to intervene in the struggles of cops and robbers. All the more reason why providers should avoid playing that game.