If a company like Facebook receives a subpoena for user data in a civil lawsuit, it can make its case to the court about why it should not have to oblige. But when that information request is in the form of a search warrant in a criminal investigation, Facebook doesn’t have that option.

That’s according to a New York appeals court, which ruled earlier this week that Facebook lacks legal standing to challenge a batch of 381 search warrants seeking data on users related to a criminal disability fraud investigation.

Facebook went public with its fight against these warrants last year, saying the company had only agreed to comply with the warrants after facing contempt charges.

The Manhattan District Attorney’s office was seeking detailed user data, including Facebook posts and photos, for more than 100 users, including some retired police officers and firefighters suspected of having feigned mental illnesses in the wake of September 11, 2001.

Because warrants have to go through the process of having a judge determine whether there is probable cause, their validity can not usually be challenged before the warrant is executed.

After a lower court found that Facebook lacked standing to fight the warrants, it appealed, claiming that because the warrants were served on Facebook and not directly on the users, they were no different than subpoenas and therefore eligible to be disputed in court before being executed.

But the appeals court labeled this a “distinction without a difference,” explaining that while “the manner in which the materials are gathered may deviate from the traditional, Facebook’s reason for seeking to quash the warrants does not. What Facebook ultimately seeks is suppression of the materials obtained from it, a determination that would necessarily impact the subsequent criminal actions.”

The court points out that if it were to accept Facebook’s argument, law enforcement would only be able to serve search warrants on physical locations. The inclusion of Facebook in the warrant process is necessary because the police have no other way of obtaining the evidence they seek to obtain for their investigation.

“It is… hard to imagine how a law enforcement officer could play a useful role in the Internet service provider’s retrieval of the specified online information,” writes the court.

Facebook also contended that the Stored Communications Act gives the company the right to challenge these warrants. However, the appeals court held that the SCA only gives Facebook the standing to fight subpoenas and court orders, and that the law “specifically distinguishes these disclosure devices from warrants.”

The court notes that an order or subpoena obtained pursuant to the SCA requires only that the government show “specific and articulable facts” that there are “reasonable grounds to believe” the information sought will be “relevant and material,” but a warrant requires the government to demonstrate probable cause.

“Here, a finding of probable cause was made by the reviewing judge, and thus the warrants are akin to SCA warrants, not SCA subpoenas or orders,” explains the court. “Thus, Facebook’s argument that it has the right to contest the warrants based upon the SCA is contradicted by the express terms of the SCA.”

The court acknowledged the spirit of Facebook’s attempt to challenge these warrants.

“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,” reads the ruling. “Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home. These bulk warrants demanded ‘all’ communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime.”

In a statement to Ars Technica, Facebook said it continues “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.”

The company is exploring its legal options.

[via Ars Technica]

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