Access Now joins legal brief supporting privacy of Facebook users

New York — An appeals court in New York has accepted an amicus brief (PDF) by Access Now, the Electronic Frontier Foundation, the Brennan Center for Justice, and TechFreedom in support of the privacy of Facebook users against interference by the U.S. government. The motion granted by the New York State Court of Appeals will help spotlight crucial arguments against government intrusion into personal privacy on the social media platform.

“To argue that our most personal and sensitive information and communications lose essential protections because a third-party service is involved is antithetical to the realities of our modern world,” said Amie Stepanovich, U.S. Policy Manager and Global Policy Counsel at Access Now. “The home is the place where individual rights are at their zenith, but in the digital age many internet services and applications are simply extensions of the home: we use the cloud in the place of a filing cabinet; share web-based e-mail instead of handwritten letters; and keep our personal contacts on social networks instead of address books. If we are to maintain any concept of privacy, the Court must recognize individual rights in data online.”


In 2013, NY investigators received and executed a warrant for all account information from 381 people on Facebook. Served as part of an investigation into disability fraud, the warrant yielded troves of data, including private messages, photos, locations, and other sensitive data. Only 62 people were ever charged with crimes, yet the government now holds the data on 381 people.

The friend-of-the-court brief argues in support of Facebook’s appeal to New York State’s highest court, the Court of Appeals, in the case “In the Matter of 381 Search Warrants Directed to Facebook, Inc….” Facebook maintains the warrants were illegal, though it has lost in lower court decisions, most recently in July 2015, when the court said it lacked standing to oppose the warrants.

“The third-party doctrine is a dusty, court-made rule that says an individual’s 4th amendment right to privacy doesn’t protect information voluntarily shared with a business, utility, or other entity,” said Peter Micek, Global Policy and Legal Counsel at Access Now. “What’s more, broad government applications of the doctrine directly threaten our freedom of expression and repress access to information. If every single thing you say and do online — and all the metadata about those interactions — can be accessed as easily as this mass warrant allowed, we’ll self-censor and think twice before making sensitive inquiries through new technology. The marketplace of ideas then shrinks, and democracy weakens.”

In 2012, U.S. Supreme Court Justice Sotomayor asserted in a concurrence in US v. Jones that information should not lose its constitutional protections solely because it has been provided to a third party for some limited purpose.

The amicus brief makes three key arguments, including that:

  • “Courts should apply the Fourth Amendment with full force to protect against improper government access to personal data that is stored with Internet Service Providers (“ISPs”)…. If anything, searches and seizures of data held by ISPs deserve heightened Fourth Amendment scrutiny.”
  • “The Fourth Amendment’s particularity requirement must be carefully considered when evaluating warrants authorizing the search and seizure of electronic data.” In this case the warrant was quite broad and indiscriminate, demanding all data on the 381 users.
  • “Courts must recognize that copying electronic data—whether done by law enforcement or a third party acting at the government’s behest—is a seizure and thus a Fourth Amendment event, regardless of whether the data is ever reviewed.”

A number of other parties also filed briefs, including Amazon.com, the New York Civil Liberties Union, the District Attorneys Association of the State of New York, and Foursquare Labs, some with other partners joined.

Access Now has previously participated as amicus in litigation including In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15–0451M (C.D. Cal. 2016), Arizona v. Nat’l Telecomms. & Info. Admin., No. 3:16-cv-00274 (S.D. Tex. 2016), Viacom Int’l, Inc. v. YouTube, Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013), and Viacom Int’l, Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010).

Access Now (accessnow.org) defends and extends the digital rights of users at risk around the world. By combining innovative policy, global advocacy, and direct technical support, we fight for open and secure communications for all.