Access Now, the Electronic Frontier Foundation, and other rights groups have objected to the U.S. government’s use of secret warrants to obtain Facebook user data as part of a not-so-secret investigation. The complaint arrived after Facebook “sent out a kind of bat signal,” the EFF said, by asking the D.C. Court of Appeals to allow these groups to file amicus briefs in a case that involves fighting secret search warrants for user data.
These warrants are particularly worrisome because without disclosure from service providers, many people have no way of knowing their information has been given to law enforcement agencies. Facebook is trusted with information about more than a billion people, and if the company receives a gag order alongside a warrant for user data, all that information can be handed over, and no one would be the wiser.
The EFF said in a blog post that it believes Facebook’s case involves the January 20 protests against the inauguration of President Donald Trump. More than 200 people have been charged with felony rioting, inciting or urging to riot, conspiracy to riot, and counts of destruction of property for their involvement with the protests. This investigation isn’t secret–major news outlets have covered the story ever since the arrests were made.
Yet now the rights groups believe that U.S. law enforcement has served Facebook with search warrants for user data as part of this investigation. Those warrants are also thought to have been served with gag orders that prevent Facebook from telling its users their data might be handed over. The government is conducting a very public investigation while also using gag orders that are supposed to apply only to secret operations.
But it doesn’t actually matter if the investigation involves the January 20 protests. The EFF said:
Whether or not this case involves the J20 protests, the fact that Facebook says the underlying investigation is already public is almost certainly enough to strike down the gag orders. Government gags that prevent a provider from notifying its users are an example of prior restraints, which are the ‘most serious’ and ‘least tolerable’ infringement on First Amendment rights. As a result, the Supreme Court has said they are only constitutional if they meet the most ‘most exacting scrutiny.’
The rights groups have filed an amicus brief in support of Facebook; you can find it here. The EFF said it believes oral arguments for the case have been scheduled for sometime in September 2017, and that it has “requested an opportunity to address the court to represent the public’s interest in ensuring that prior restraints such as this don’t issue without the most exacting scrutiny our court system is prepared to provide.”
If the case is related to the January 20 protests, this will simply be the latest in a series of privacy scares resulting from the police’s response. Law enforcement is said to have collected some 188 cellphones from people arrested for their connections to the protests, and City Lab reported in January that police appeared to have started to mine data from the confiscated devices “almost immediately after the arrests.”
Those suspicions were confirmed in March, when prosecutors said they obtained data from the cellphones even though they were locked. It’s not clear how they gathered this information, what data they were able to access, or how they plan to use what they collected. If the prosecutors also used secret warrants to collect data from companies like Facebook, they could have access to even more information, and the defendants would never know.