The future of online privacy in the United States may now be at stake in the state of New York. Attorneys for Facebook faced off in February against prosecutors from Manhattan who sought information from the accounts of 381 Facebook users in connection with a disability fraud case dating back to 2013. Facebook also disputes the legality of a gag order issued by a lower court that had prohibited the company from informing users that their pages were being examined by criminal investigators. Thomas H. Dupree, Jr., an attorney for Facebook, told the Associated Press, “The district attorney’s position in this case is chilling.”

Facebook is asking the state of New York’s highest court, the New York State Court of Appeals, to hear the case and issue a ruling. The company’s attorneys told the judges that the company should have legal standing to challenge search warrants when prosecutors seek information from Facebook accounts. Manhattan District Attorney Cyrus R. Vance, Jr., countered that only individual Facebook users themselves have the right to oppose legal efforts seeking their personal information.

The judges asked a number of questions to attorneys on both sides in their effort to decide if constitutional issues are at stake in this case. One point of contention is whether the District Attorney’s court order should be considered as a subpoena or as a search warrant. Facebook claims that the order functions as a subpoena and therefore violates the federal Stored Communications Act, which extends to internet companies the Fourth Amendment right to protection from “unreasonable searches and seizures.”

WHAT IS THE BACKGROUND OF THE CASE BEFORE THE COURT OF APPEALS?

Prosecutors requested search warrants in 2013 for the accounts of 381 people suspected of disability fraud. Facebook challenged the legality of the warrants, but lower courts agreed with the prosecutors. Those courts determined that Facebook had no legal standing to object since the targets of the warrants were criminal suspects and not Facebook itself. Facebook surrendered the information, but the company continues to challenge the right of prosecutors to seize presumably “private” information from individual Facebook accounts.

Facebook attorney Dupree charged that the scope and extent of the search warrants requested by Vance’s office was “unprecedented.” He reminded the Court of Appeals judges that Facebook routinely cooperates with law enforcement authorities, but he also insisted that Facebook must be allowed to challenge “overly-broad” search warrants. “This case involves the DA’s seizure of the most personal and intimate information imaginable,” Dupree told the AP.

District Attorney Vance reminded the judges that any Facebook user whose account information is seized may sue for damages or challenge the admissibility of the evidence. Vance added that judges must approve search warrants and that prosecutors who use the warrants already have the permission of judges. “Law enforcement is always going to be bumping up against people’s privacy,” Vance explained. The search warrants for social media accounts, Vance continued, are “really no different than if we issued a search warrant into someone’s house and took books and records or a car or a safe deposit box.”

PRECISELY WHAT INFORMATION WERE PROSECUTORS SEEKING?

In the disability fraud investigations, prosecutors sought information from the Facebook accounts of retired New York police officers and firefighters in their effort to prove that the retirees were, in fact, leading active lives and lying about their supposed disabilities. Vance’s office charged that the retired New York City police officers and firefighters were fraudulently collecting Social Security disability benefits for claims including insomnia and the inability to make eye contact in conversations.

Some of the retired police officers and firefighters also claimed that they were struggling with mental disabilities as a result of the 9/11 terrorist attacks. “These individuals were faking lifestyles,” Vance said. “They claimed they couldn’t leave the house, couldn’t go bowling, couldn’t see their family.” Sixty-two of the Facebook users and seventy other retirees were eventually indicted in 2014.

Whether the Court of Appeals will decide to hear the case is yet to be determined. A decision is expected in months rather than days or weeks. As more of us use social media, police officers and prosecutors are watching. They may create false identities or accounts to gather evidence. The online activities of police agencies are turning up these days in a number of criminal cases. In some cases, posts on Facebook, Twitter, and other sites have led directly to criminal convictions.

IS THE LAW KEEPING PACE WITH TECHNOLOGY?

In many cases involving the internet and other 21st-century technologies, our nation’s courts and attorneys have little or no guidance from the law or from prior court decisions. Our culture is now dominated by computers, smartphones, GPS and surveillance devices, and a variety of social media. Can evidence found on social media websites be used legally against someone in court, and if so, how?

And what about so-called “privacy” settings? Do those settings really make any difference? These are among the questions that have judges and attorneys looking for answers in 2017. If you have concerns of your own regarding social media and online privacy, an experienced Westchester County criminal defense lawyer can answer those questions and address your privacy concerns.

As criminal investigations proceed, social media can be used by the police to prove associations between suspects, to deny or confirm alibis, and to find evidence that implicates criminal suspects. Everyone who goes online needs to understand that nothing you post on a social media site is ever really “private” and that nothing you delete is ever “really” deleted. It’s all recorded somewhere. If you have committed a crime and there is online evidence of that crime, you can count on the authorities finding and using that evidence against you.

Anyone charged with a crime – or suspected of a crime – in Westchester County or anywhere in the state of New York should refrain from posting anything at all online. Instead, you’ll need to speak with an experienced Westchester County criminal defense lawyer who can explain your rights, and if necessary, mount a legal defense on your behalf. And if you’re a law-abiding resident of New York, you still need to be smart about what you post online. If you want something to remain private, the internet simply is not the place for it.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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