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posted by martyb on Saturday June 28 2014, @11:22AM   Printer-friendly [Skip to comment(s)]
from the damned-if-you-do--damned-if-you-don't dept.

A dispute between Facebook and Manhattan's district attorney ( http://www.nytimes.com/2014/06/27/technology/facebook-battles-manhattan-da-over-warrants-for-user-data.html ) demonstrates the company's inability to protect its customers from government requests for outrageous amounts of data and the legal ramifications it would suffer if it were to reveal those requests to its customers. The conflict is rooted in the district attorney's request for complete profile information, from Likes and messages to photos and videos, of more than 300 accounts. In a blog post ( http://newsroom.fb.com/news/2014/06/fighting-bulk-search-warrants-in-court/ ), Facebook says this "unprecedented request is by far the largest we've ever received by a magnitude of more than ten and we have argued that it was unconstitutional from the start." The district attorney's office threatened to have company officials held in contempt of court if they didn't offer complete access to both the profiles and archived information of the indicated accounts.

Melissa Jackson, an acting Supreme Court justice, then argued that Facebook is nothing more ( http://www.nytimes.com/interactive/2014/06/26/technology/facebook-search-warrants-case-documents.html ) than a "digital storage facility of its subscribers' digital information" and that it cannot fight the warrant on its users' behalf. She then told the company that it could not inform its users of the warrant because of the "fungible nature of digital information" and the possibility of some users attempting to delete their information before the district attorney's office could get it. (Never mind the difficulty of permanently deleting anything uploaded to Facebook's servers.)

Additional reporting can be found at: http://pando.com/2014/06/27/facebooks-inability-to-protect-its-users-privacy-from-manhattans-district-attorney-shows-the-governments-strength/

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  • (Score: 2, Insightful) by Horse With Stripes on Saturday June 28 2014, @11:32AM

    by Horse With Stripes (577) on Saturday June 28 2014, @11:32AM (#61314)

    Let's be realistic about this. This is not about Facebook trying to protect someone's Constitutional rights. Facebook cannot claim that the information is private when the information is provided by the individuals and is made publicly available with the users' permission. Giving the information to a third party - in this case Facebook - pretty much eliminates any claims to privacy.

    Facebook doesn't want to reveal this information because they don't want the public to know just how much information Facebook collects about everyone ... especially the shadow profiles [google.com].

    The real issue here is that Facebook should never have as much information about everyone as they do. If they weren't spending so much time, effort and money trying to find out what everything you've ever done in your life then they wouldn't be in this position. Once Facebook turns over this information, and the court makes it public, we'll see what's really going on behind the Facebook curtain.

    • (Score: 0) by Anonymous Coward on Saturday June 28 2014, @12:44PM

      by Anonymous Coward on Saturday June 28 2014, @12:44PM (#61324)

      Why link to google like that? Quite pointless.

      • (Score: 1) by Horse With Stripes on Saturday June 28 2014, @02:01PM

        by Horse With Stripes (577) on Saturday June 28 2014, @02:01PM (#61332)

        Because there are so many entries with such a variety of information - including user comments - it would be pointless to pick just one.

        • (Score: 1, Interesting) by Anonymous Coward on Saturday June 28 2014, @02:24PM

          by Anonymous Coward on Saturday June 28 2014, @02:24PM (#61340)

          Different AC here.

          They may have gotten the same result as I did using your link. The page just shows the Google search box and not the results you expected from the https://www.google.com/?#q=facebook+shadow+profiles [google.com] link. Not being a big fan of tracking and/or javascript anyway I loaded https://duckduckgo.com/html/ [duckduckgo.com] and simply typed in the words (without quotes of course) "facebook shadow profiles" and read some of the linked articles there giving further evidence that Facebook just needs to go away.

          Pardon the Godwin but Facebook sounds like the old Hitler Youth program with even more clueless members. Seemingly innocent comments and pictures can do a great deal of harm without the knowledge or intent of the poster. Wish all the websites out there would quit assisting Facebook and the NSA etc with all the Facebook, Twitter, Google+ tags. Thanks SoylentNews for not sinking that low!

        • (Score: 2) by Geotti on Saturday June 28 2014, @09:53PM

          by Geotti (1146) on Saturday June 28 2014, @09:53PM (#61416) Journal

          Next time, just use: Duck Duck Go

          i.e: lmddgtfy.net [lmddgtfy.net]

    • (Score: 3, Interesting) by edIII on Saturday June 28 2014, @04:44PM

      by edIII (791) on Saturday June 28 2014, @04:44PM (#61362)

      Giving the information to a third party - in this case Facebook - pretty much eliminates any claims to privacy.

      Not exactly. You can't make such a blanket statement against all of the data. Some of it is indeed intended for mass public consumption with zero expectations of privacy. Large amounts of it are also intended for consumption by a limited list of recipients with the expectation that Facebook will not disclose it outside of that list.

      There are strong claims to the intention and expectation of privacy. While both of us may find the very idea of Facebook foolish and harmful towards anonymity and privacy, that doesn't mean they didn't have expectations of, or deserve privacy for some of it.

      The position of the courts -

      "digital storage facility of its subscribers' digital information" and that it cannot fight the warrant on its users' behalf. She then told the company that it could not inform its users of the warrant because of the "fungible nature of digital information" and the possibility of some users attempting to delete their information before the district attorney's office could get it.

      That position is more or less correct. Expectations of privacy are not even relevant here either as a warrant is actually present. I tend to get real piping hot when the government is collecting information without warrants. Facebook has no legal standing to challenge a warrant, or argue about the content of that warrant. This is not some blanket collection activity by the NSA either. The warrant originated with the District Attorney. A judge approved the nature of the warrant. Arguing and making analogies as to what the government is taking is both foolish and unnecessary. The user is responsible for such defenses in court, not Facebook.

      I appreciate corporations that take a stand WRT to warrantless searches to further the goals of mass surveillance, not corporations fighting warrants that came from judges and not automated systems.

      The real issue here is that Facebook should never have as much information about everyone as they do.

      Bingo. If you want real privacy the game is to make to the government come directly to you to exercise the warrant. When government has to knock on your door, serve the warrant, and then start seizing your records and property, you finally have real protections. As a bonus, it also denies the warrantless searches. In both cases, they still had to come to you.

      The answer is ♫Zero Knowledge Services♫

      Facebook is not in possession of any secret in plaintext, and therefore, only has worthless ciphertext. Let Facebook disclose all the ciphertext it wants. It only deals with plaintext information that is intended to be made public, and ciphertext information only useful to a limited group of recipients.

      Of course, none of that works for Facebook's business model :) That's the real reason why they are fighting with no legal standing at all. If the users figured out how risky it was to put the information up there like that, Facebook would get less information, less targeted marketing, and provide less value to the real customers Big Data and Advertising. I don't believe Facebook is making an ethical stand for a second. This is business.

      I'll join up with Social Networking the very day there is a service operating with Zero Knowledge. Something similar to a decentralized network like Diaspora.

      --
      Technically, lunchtime is at any moment. It's just a wave function.
      • (Score: 2) by Geotti on Saturday June 28 2014, @10:01PM

        by Geotti (1146) on Saturday June 28 2014, @10:01PM (#61417) Journal

        The user is responsible for such defenses in court, not Facebook.

        Wait a minute, how are users supposed to defend their rights, if they can't know anything about the warrant, since "the company [...] could not inform its users of the warrant?"
        (Besides not posting anything in advance, of course.)

        • (Score: 2) by tathra on Saturday June 28 2014, @11:36PM

          by tathra (3367) on Saturday June 28 2014, @11:36PM (#61437)

          since there's a warrant, i'm hoping is valid and not a blanket warrant for nothing like cops usually get. as such, noboody's rights are being violated and the system is working as intended. and i'm pretty sure its policy to not go out of the way to tell suspects you have warrants to find more evidence on them (more because for the warrant to be constitutionally valid, there must be something to justify probable cause) as that gives them motivation to get rid of any and all incriminating evidence.

          • (Score: 2) by Geotti on Saturday June 28 2014, @11:58PM

            by Geotti (1146) on Saturday June 28 2014, @11:58PM (#61447) Journal

            So, if theres "something" to justify probable cause, and something else comes up as a result and is made public that's fine?
            That's just the first example that I came up with, but what I mean is that it's your data (i.e. your property) so shouldn't you be informed that you are being searched?
            IANAL, so I don't know how such matters are handled in "physical" cases, and I'm definitely not on the side of Facebook, but it's an eerie feeling that someone can come up to a datacenter with a warrant and claim my data for possibly semi-made-up reasons.

            But thanks for the explanation, it does make sense, and I'm probably just lacking some (a lot!) fundamental knowledge in the legal sphere.

            • (Score: 2) by tathra on Sunday June 29 2014, @12:10AM

              by tathra (3367) on Sunday June 29 2014, @12:10AM (#61453)

              So, if theres "something" to justify probable cause, and something else comes up as a result and is made public that's fine?

              i'm not sure i understand what you're asking. by the 4th, warrants must specifically describe what they're looking for, not just "anything that might be incriminating". there shouldnt be anything else come up as a result, because anything that isnt specified on the warrant is out of bounds.

              of course, thats just going by what the constitution says, and we all know how law enforcement agencies respect the constitution.

              • (Score: 2) by Geotti on Sunday June 29 2014, @02:47AM

                by Geotti (1146) on Sunday June 29 2014, @02:47AM (#61493) Journal

                Well, that is kind of my point, it's one thing if they just take fakebook, but when they do a blanket search on everything you have stored somewhere on the internet, because you didn't pay your new air tax and are find that you've been communicating with people connected to "hookers and blackjack" and then just construct probable cause for a new warrant... That's pretty scary.

                • (Score: 2) by tathra on Sunday June 29 2014, @02:58AM

                  by tathra (3367) on Sunday June 29 2014, @02:58AM (#61499)

                  welcome to reality. 'parallel construction', the act of laundering illegally-obtained evidence so it can be successfully used in courts, has unfortunately been a thing for a while. the really fucked up thing is thats exactly how its described by the ones using it! they know they're committing perjury and undermining the entire justice system.

                  now, i'll admit there are some things where the ends would justify the means, but those kind of things are so extremely rare that they basically don't exist; "catching bad guys" could never, ever possibly be one of those things.

                • (Score: 2) by edIII on Sunday June 29 2014, @04:05AM

                  by edIII (791) on Sunday June 29 2014, @04:05AM (#61512)

                  How about a physical analog?

                  * A private country club leases out small private locker rooms (opulent ain't it) for ownership of their guests. It's like a full on rental.
                  * Suspect stores some personal items and files with a quite reasonable expectation of privacy.
                  * Judge approves warrant only for specific files and context. Anything else is ignored according to the Constitution (IIRC).
                  * Law Enforcement executes the warrant encountering the country club's personnel.
                  * Personnel object to warrant and attempt to inform Suspect. Law Enforcement stops them.

                  This situation (or close to it) has happened countless times already. This is the reasonable position IMHO. Law Enforcement is granted some leeway in their investigations to gather evidence. Part of that, is corporations and/or citizens cooperating and not deliberately jeopardize an investigation. All of this occurs under the oversight of the courts.

                  As long as they have a warrant, I don't see a problem with cooperating with them. That means to me that a judge thought this was fair and best interests of the citizens.

                  Not every warrant is as well thought out and appropriately restrictive as the next. There are bad warrants, but there is also supposedly a system to punish them. Plenty of lawsuits have already been won in the favor of citizens, so it does happen.

                  There are problems, but this isn't worth fighting over. It's the warrantless stuff that concerns me far more. You're not at risk as much as you think. I think the exceptions are quite notable, but it can't represent the majority. As long as judges are involved, and you are not John Doe listed, you are fairly safe.

                  Facebook is no different than the country club. Facebook is storing personal property and files. Maybe the warrants need to be more restrictive according to Facebook, but that is not the same ballpark as NSA activities which are deliberate unconstitutional acts.

                  Kind of boring really. You're at far more risk every minute of the day from the warrantless searches being conducted.

                  --
                  Technically, lunchtime is at any moment. It's just a wave function.
                  • (Score: 2) by Geotti on Sunday June 29 2014, @10:28PM

                    by Geotti (1146) on Sunday June 29 2014, @10:28PM (#61726) Journal

                    The physical example makes sense, but shouldn't the personnel of the club, acting as the agent of their client be overlooking the seize to make sure that only those items are inspected that have been mentioned in the warrant?
                    And, of course, blanket warrants are just wrong, even if it's just photoalbums, etc. The powers that be are not supposed to be able to take everything with them to see how it may fit a case, but take exactly and only what they need, IMO. If necessary, they should be able to come again, and the provider should be required to keep copies of the necessary data as if they're invoices (but only in the case of a warrant).
                      So what if I have a picture of Escobar hugging me? Maybe he's just happy that I fixed his computer...

                    And I agree that fb isn't worth fighting over ; )

                  • (Score: 3, Interesting) by urza9814 on Tuesday July 01 2014, @04:55PM

                    by urza9814 (3954) on Tuesday July 01 2014, @04:55PM (#62560) Journal

                    Yea, but they're not opening one locker to look for a specific file. They've requested that the country club index and ship them every item contained in some 300 lockers.

                    Facebook isn't challenging this because they think they should be able to inform any use whose data is requested. They're fighting it because they think the entire warrant is invalid. I mean they're probably actually fighting it to save money or for PR, but they wouldn't have even tried if their lawyers though everything was perfectly fine and normal.

                    What's disturbing is that the judge made no ruling on that fact. The judge said Facebook can't challenge it because it's not Facebook's data; the users can't challenge it because nobody can inform them. So the judge essentially has stated that even if the warrant was 100% illegal and blatantly unconstitutional, Facebook would have to obey anyway because according to this judge nobody has any right to challenge it! Catch-22...

                    • (Score: 3, Interesting) by edIII on Wednesday July 02 2014, @10:00PM

                      by edIII (791) on Wednesday July 02 2014, @10:00PM (#63288)

                      I wasn't sure the warrant was illegal.

                      1 locker or 3000 lockers makes no difference. I honestly thought it was just backlogged and the district attorney has open investigations and warrants for *every* single locker.

                      I'm not really sure Facebook has the right to challenge a valid warrant, or inform the user during a criminal investigation. Then again, I've never been involved with the police. I've never had them ask me questions about somebody or something else and then inform me I couldn't say anything. I don't find it unreasonable, but only if there is a judge and warrant involved. Nothing rubber stamped.

                      I dislike government probably a lot more than the next person, but I'm not a proponent of *complete* disruption of LEO's ability to investigate. While I would not be happy about it, if a detective asked/told me to be quiet because they were investigating a coworker for non-drug violent crime, I would probably stay silent. It would still be up to my discretion, but I'm not so fundamentally opposed to the police and government that I want anarchy. Strange as it may sound, I do have a strong belief in civic duty and my country. The people running the show are complete and utter twatwaffles, but that's implementation and not theory.

                      What I find abhorrent is mass surveillance. That by it's very nature is warrantless, and I become quite upset when they use arguments that it's only an invasion of privacy when a human being looks at it. I buy that bullshit even less since it will be Big Data that is telling LEO to investigate me, and that could only occur with the initial invasion of my privacy.

                      Basically, I just don't see 300 valid warrants (assuming they are) being in the same category of 4th Amendment violations that are widespread as we speak.

                      --
                      Technically, lunchtime is at any moment. It's just a wave function.
      • (Score: 2) by wantkitteh on Sunday June 29 2014, @12:06PM

        by wantkitteh (3362) on Sunday June 29 2014, @12:06PM (#61602) Homepage Journal

        I'll join up with Social Networking the very day there is a service operating with Zero Knowledge. Something similar to a decentralized network like Diaspora.

        Diaspora looks even easier for 3rd parties to mine for information than Facebook.

        • (Score: 2) by edIII on Sunday June 29 2014, @09:14PM

          by edIII (791) on Sunday June 29 2014, @09:14PM (#61715)

          Only the public stuff. Any content that is protected by an ACL would require a data miner to possess credentials.

          Facebook is a single holder for a lot of private content for mining in a single spot. At least with a decentralized network you have to compromise each node.

          --
          Technically, lunchtime is at any moment. It's just a wave function.
  • (Score: 4, Interesting) by stormwyrm on Saturday June 28 2014, @12:08PM

    by stormwyrm (717) on Saturday June 28 2014, @12:08PM (#61321) Journal

    Frankly, I'm finding it hard to support Facebook's position on this after a brief skim through the NYT article. It seems that there are proper search warrants for all 381 suspects, and while this is a somewhat large number it does not amount to the kind of broad sweep that the NSA has been known to do. From what I can see everything is in proper order as far as the Fourth Amendment is concerned. Facebook contends:

    "The government's bulk warrants, which demand 'all' communications and information in 24 broad categories from the 381 targeted accounts, are the digital equivalent of seizing everything in someone’s home. Except here, it is not a single home but an entire neighborhood of nearly 400 homes," Facebook wrote in a brief to the appeals court. "The vast scope of the government’s search and seizure here would be unthinkable in the physical world."

    Everything in someone's home? Nonsense. This is someone's digital data, the data a person shares with their friends. It is at most the equivalent of searching and seizing all photo albums and correspondence in a person's home, and given how material this sort of information is to the investigation that the government is conducting, it is not to my mind an unreasonable search. If this sort of investigation occurred before the digital age, they'd indeed have searched all 381 homes of all 381 suspects in good time.

    By the way, the summary should have put in a bit about how the investigation was about people defrauding Social Security with false disability claims. That small bit was what made the Facebook info crucial to their investigation.

    --
    Numquam ponenda est pluralitas sine necessitate.
    • (Score: 0) by Anonymous Coward on Sunday June 29 2014, @01:38AM

      by Anonymous Coward on Sunday June 29 2014, @01:38AM (#61481)

      They didn't take anything, only a copy of it. They don't see anything wrong with that. Its only a copy. I still have the original.

      Same as Copyright and Patent. Nobody is stealing anything. Its only a copy. They still have the original.

      Yes, we may complain of "loss of privacy", just as media moguls may refer to us doing it as "piracy", but aren't we supposedly under a rule of law that applies to everybody? If only some people obey the law, the ones who are above the law profit handsomely at the expense of the ones who are obedient to the law.

      If you want to keep something secret, don't make it public!

      Monkey see, monkey do, someone wails "I have a patent on that!"

      Government pals, mobilize your guns to enforce the wagging of my pen!

    • (Score: 2) by urza9814 on Tuesday July 01 2014, @05:02PM

      by urza9814 (3954) on Tuesday July 01 2014, @05:02PM (#62563) Journal

      If this sort of investigation occurred before the digital age, they'd indeed have searched all 381 homes of all 381 suspects in good time.

      And, unlike in this case, each of those 381 people would have had the opportunity to challenge the constitutionality of the search.

      The problem here isn't really the search itself; it's the Catch-22 that nobody has a right to challenge it.

      • (Score: 2) by stormwyrm on Tuesday July 01 2014, @09:44PM

        by stormwyrm (717) on Tuesday July 01 2014, @09:44PM (#62713) Journal

        As the DA says, these 381 people will eventually have their day in court, and there they can fight to make the Facebook evidence unconstitutional if indeed it is. If this were a physical search and they had a valid warrant, as seems to be the case here, what could they do? If you were one of them and the police showed up at your door with a valid warrant authorising them to search your house, if you refused the police would have the right to batter down your door or pick your locks anyway and you could have obstruction of justice or something like that added to the charges against you. You don't challenge a search warrant when the police are at your door. Your lawyer does that once in court by filing motions to suppress evidence or return property.

        The ACLU on the other hand only seems worried that the breadth of the search warrants was troubling. They don't appear to be so troubled by the fact that the people involved aren't being notified. Facebook is like the owner of a self-storage facility and there are warrants to search certain units there. Does the owner of the facility need to notify his clients, or can they be compelled not to do so?

        --
        Numquam ponenda est pluralitas sine necessitate.