Facebook Should Be Allowed to Protect User Privacy

January 17, 2017


NEW YORK—January 17, 2017—Facebook should be allowed to protect the privacy of its users by challenging the constitutionality of “bulk” warrants for personal data, argued the Brennan Center for Justice in an amicus brief accepted by the New York State Court of Appeals. Facebook is challenging, on behalf of its customers, a ruling that allowed the New York County District Attorney’s Office to seize, search, and retain the private account information of hundreds of users, the vast majority of whom were not ultimately prosecuted or even notified of the privacy invasion.

“Records hosted by third-party communications providers, such as Facebook, contain vast amounts of personal information and deserve the same constitutional protections afforded to one’s private papers,” said Michael Price, counsel in the Brennan Center’s Liberty and National Security Program and one of the authors of the brief. “Any suggestion that online communications are less deserving of Fourth Amendment guarantees is off the mark and corrosive of privacy rights, freedom of speech, and freedom of association.”

The Brennan Center’s brief emphasizes three main points: (1) user data stored with internet service providers like Facebook requires vigorous Fourth Amendment protections; (2) the Fourth Amendment’s “particularity requirement” takes on special importance in the digital context; and (3) copying of electronic data is a seizure under the Fourth Amendment. The Brennan Center believes that upholding these principles is essential to protecting privacy in the digital age.

“This brief is an opportunity for us to highlight that the seizures here extended beyond wall postings and photos,” said Nate Asher, O’Melveny counsel. “The government collected a wealth of user data, including mobile user locations and search history both on Facebook and on other websites. The Court’s analysis of the seizures in this case should be viewed through that lens.”

Read the full amicus brief, written in conjunction with O’Melveny & Myers LLP and filed on behalf of Facebook alongside co-amici the Electronic Frontier Foundation, Access Now, and the Technology Freedom Institute.

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Julie Fei
O’Melveny & Myers LLP

Naren Daniel