[LINK] U.S. Law Enforcement Obtaining Secret Warrants to Search Facebook Profiles

[Jan Whitaker]

At 08:35 PM 13/07/2011, Kim Holburn wrote:
>Fox unfortunately.  24 warrants doesn't seem like much although the 
>"without their knowledge" bit doesn't seem so good.

More complete article in the Age. This is the end of it:
http://www.theage.com.au/technology/technology-news/a-new-us-lawenforcement-tool-facebook-searches-20110713-1hcuv.html

Potential for new legal challenges

The Facebook searches potentially open up new legal challenges in an 
area that at one time seemed relatively settled: how much protection 
an individual has against government searches of personal information 
held by third parties. In a 1976 case, United States v. Miller, a 
divided US Supreme Court ruled that a bank did not have to inform its 
customer when it turned over his financial records to the Bureau of 
Alcohol, Tobacco and Firearms.

In doing so, the US Supreme Court held that the customer could not 
invoke Fourth Amendment rights against illegal search and seizure 
because the records were bank property in which he had no legitimate 
"expectation of privacy".

Under this reasoning, a person would have no more expectation of 
privacy in Facebook content than in bank records. A key difference, 
however, is the scale of information that resides on social networking sites.

"It is something new," said Thomas Clancy, a constitutional-law 
professor at the University of Mississippi. "It's the amount of 
information and data being provided as a matter of course by third parties."

Eben Moglen, a cyberlaw professor at Columbia Law School, says the 
Facebook searches show that courts are ill-equipped to safeguard 
privacy rights in an age of digital media. In his view, "the 
solutions aren't legal, they're technical".

Clancy, the Mississippi professor, said that courts are divided over 
whether the unprecedented volume of digital records in the possession 
of third parties should give rise to special rules governing the 
search of electronic data.

He added that the US Supreme Court had an opportunity to clarify the 
issue in a case called Ontario v. Quon, but that it decided to "punt".

The Quon case concerned a California policeman who claimed his 
employer violated his Fourth Amendment rights when it read sexually 
explicit messages that he had sent from a work pager.

The Court found that that the employer's search was not unreasonable, 
but declined to rule on the degree to which people have a privacy 
interest in electronic data controlled by others.

Explaining the court's caution, Justice Anthony Kennedy wrote, "The 
judiciary risks error by elaborating too fully on the Fourth 
Amendment implications of emerging technology before its role in 
society has become clear."

Reuters



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