Facebook Loses Appeal on New York Search Warrants

A New York state appeals court ruled on Tuesday that Facebook had no legal standing to challenge search warrants on behalf of its customers, a decision that dealt a blow to civil libertarians and social media companies seeking to expand Internet privacy.

Upholding a lower court decision, the five-judge panel in Manhattan said that under state and federal law only a defendant can challenge a search warrant, and it must be done during a hearing before trial. At that point, defendants can move to have evidence thrown out as the fruit of an illegal search.

But Facebook, as the online entity storing material, does not have the power to ask a judge to throw out search warrants before they have been executed, said Judge Dianne T. Renwick, who wrote the unanimous opinion. “There is no constitutional or statutory right to challenge an allegedly defective warrant before it is executed,” she wrote.

Judge Renwick rejected Facebook’s argument that it should be able to challenge what it sees as illegal searches of its customers’ files. The company argued that such warrants differ from physical searches of an office or a home, since Facebook must perform the task for the police. As a result, the company contended, search warrants served on social media sites are akin to civil subpoenas for records, which may be challenged in court.

The case — known formally as “In Re 381 Search Warrants Directed to Facebook Inc.” — has been closely watched as a test case by civil libertarians and other social media companies. Several tech giants, including Google, LinkedIn and Twitter, have filed amicus briefs. So has the New York Civil Liberties Union.

The search warrants were signed in 2013 by Justice Melissa Jackson on the strength of a 96-page affidavit that has never been made public. The warrants ordered Facebook to turn over all of the information in the accounts of 381 people, including private photos and conversations.

That trove of information was used to obtain indictments for disability fraud against more than 130 police officers and other former public employees. Justice Jackson also prohibited Facebook from informing its customers about the searches. None of the people indicted have challenged the search warrants, and more than 108 have pleaded guilty.

Jay Nancarrow, a spokesman for Facebook, said in an email that the company had not decided whether to appeal the decision. “We continue to believe that overly broad search warrants — granting the government the ability to keep hundreds of people’s account information indefinitely — are unconstitutional and raise important concerns about the privacy of people’s online information,” he said.

The Manhattan district attorney, Cyrus R. Vance Jr., has defended the warrants as legitimate, maintaining that his investigators had probable cause to believe many of the defendants were pursuing active lives while claiming to be so disabled and depressed that they could not leave the house. Still, his office has acknowledged that about 300 of the people whose accounts were searched were never charged with fraud.

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Mr. Vance’s spokeswoman, Joan Vollero, pointed out that the appellate panel was the third court “to deny Facebook’s efforts to block lawful evidence gathering.”

Though the appellate court sided with Mr. Vance on the law, Judge Renwick wrote that the panel was troubled by the scope of bulk warrants. She pointed out that of the 381 people whose accounts were seized — including all of their private communications and photographs — only 62 were charged with a crime.

“Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the district attorney’s alleged right to indefinitely retain the seized accounts of the uncharged Facebook users,” she wrote. “Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home.”

The panel — the Appellate Division, First Department — also disagreed with Facebook’s claim that the federal Stored Communications Act gave it the standing to contest the warrants, saying the company had misinterpreted the law.

The judges said that in their reading, the communications act allows Internet service providers to object to subpoenas and court orders, but not to search warrants.

Mariko Hirose, a staff attorney at the New York Civil Liberties Union, expressed disappointment in the decision. “As the court recognized, ‘decisions involving the Fourth Amendment have the power to affect the everyday lives of all U.S. residents,’ ” she said. “We agree. And we look forward to the next time these issues are at play as they have a significant impact on the privacy rights of all New Yorkers.”