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Facebook Back In Court Challenging More Law Enforcement Gag Orders

Facebook is at it again, hoping to make law enforcement agencies second-guess their secrecy demands. It recently successfully challenged gag orders attached to 381 warrants served to it by Manhattan DA Cyrus Vance's office. It also forced Minnesota law enforcement to retract warrants seeking information from a police shooting victim's girlfriend's Facebook account by challenging the secrecy added to the demand for data.

Court documents obtained by Buzzfeed show the social media giant is taking on another gag order -- this one possibly related to arrests stemming from protests during Trump's inauguration.

According to the limited information unsealed so far, Facebook received search warrants from the government for three account records over a three-month period. The warrants were accompanied by a nondisclosure order from a District of Columbia Superior Court judge barring Facebook from notifying users about the warrants before Facebook complied — an order the tech company is now challenging.

Most details about the case remain under seal, although one recent filing suggests that the warrants relate to the mass arrests in Washington, DC, during President Trump’s inauguration. BuzzFeed News obtained court papers filed on Friday by tech companies, civil liberties groups, and consumer advocacy organizations in support of Facebook’s challenge to the gag order.

If the warrants (and their gag orders) are related to the inauguration protests, the amount of data demanded seems excessive. Facebook's notice to potential amici [PDF] has this to say about the warrants:

The Warrants seek all contents of communications, identifying information, and other records related to three Facebook accounts for a specified three-month period of time. The Warrants are accompanied by a non-disclosure order issued by the Superior Court pursuant to 18 U.S.C. § 2705 (the “NDO”) requiring that Facebook and its employees not disclose the existence of the Warrants to anyone before Facebook produces documents and information to the government in response to the Warrants.

Ninety days of Facebook use captures a whole lot of communications, much of which will have little to do with the felony charges no one's able to discuss. Facebook's notice hints this is related to a high-profile case, so there's little to be gained by demanding complete silence for an indefinite period of time.

Because Facebook believed that neither the government’s investigation nor its interest in Facebook user information was secret, Facebook moved to vacate the NDO so that it could provide its users with notice of the Warrants and an opportunity to object to them before Facebook produced responsive records to the government.

Facebook isn't challenging the warrants themselves. It has attempted to do this in the past but has yet to see its asserted third-party interest find any takers in the judiciary. Facebook says it's already preserved the records requested by law enforcement. If this is the case, the continued demand for secrecy makes very little sense.

The good news is several tech companies and civil liberties groups have already filed motions in support of Facebook's challenge:

Three briefs in support of Facebook were filed on Friday. One represented the views of eight tech companies – Microsoft, Google, Apple, Snap, Dropbox, Twitter, Yelp, and Avvo – along with the Reporters Committee for Freedom of the Press; another came from the American Civil Liberties Union and Public Citizen Litigation Group; and a third was filed on behalf of the Electronic Frontier Foundation, Access Now, Center for Democracy & Technology, and New America’s Open Technology Institute.

Zoe Tillman at Buzzfeed points out the EFF's brief contains further hints about the not-so-secret investigation the government would like to keep under cover. From the brief:

The timing of the government’s investigation and the underlying motions of this case in the Superior Court of the District of Columbia coincide with the proceedings in the cases involving the January 20, 2017 Presidential Inauguration protestors, who are currently facing prosecution in the same jurisdiction. These cases and the events surrounding them have been highly publicized.

The immediate upshot is the nondisclosure period has been shortened to 30 days after Facebook hands over the information to the government. But the data won't be handed over until the gag order issue is resolved, so the gag order is still in place for the time being. Facebook is obviously hoping to find the use of these gag orders unconstitutional and is trying to build a litigation portfolio of free speech wins to push the government out of its default secrecy mode.

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