“A New York judge ruled Tuesday that Facebook has no legal standing to challenge the constitutionality of search warrants served on its users, highlighting the limits to online companies’ abilities to protect user privacy.

Last year, Facebook appealed a court decision requiring it to hand over data, including photos and private messages, relating to 381 user accounts. The data was sought as part of an investigation by the New York County District Attorney’s office into a disability fraud case.

Other companies including Google and Microsoft filed briefs supporting Facebook’s move, as well as the American Civil Liberties Union.

In her decision on Tuesday, Judge Dianne Renwick of the New York State Supreme Court said Facebook has no constitutional or statutory right to challenge a warrant before it’s issued.

Facebook had argued that the warrants function like subpoenas, because they require the company to be responsible for producing data and delivering it to the government. It said the federal Stored Communications Act gave it the right to challenge any order or subpoena served upon it.”  Link

Standing regards the legal ability to challenge a law or action in court.  Only those with standing may do so, and subsequently if any party to an action successfully argues one does not have standing, or a court issues such a ruling itself, then the party without standing cannot proceed.  Injury, causation, and redressability are the classic requirements a party must meet to prove standing.  There are, naturally, many exceptions, conditions and sub parts to the rules, but those are the basics.

Standing requirements and certifications can also be included in legislation which may be introduced to grant standing to those who cannot pass a traditional standing analysis, or take away any ambiguity.  Just to be different, in New York state, the Supreme Court, is not the highest state court, it is an intermediate court, so this ruling has not been made by the state’s highest court.  The Court of Appeals is what New York calls its highest level appellate court, and Facebook may yet appeal this decision to that court.

The issue of Facebook’s standing is so important in this case because if they cannot challenge the warrant, then no one else will.  How?  Well the warrant itself includes a legal directive that Facebook not inform anyone else of its existence.  So Facebook, will not be telling any of the affected users that their information is being turned over – they are legally prohibited from doing so.  Not knowing about it, the individual user cannot challenge the warrant to prevent the release of private information to the government.  This yields a catch 22 whereby the state, with the help of a compliant judiciary, gets to access the data most of us consider private without ever having to justify the intrusion.

Attorney and great legal blogger Scott Greenfield has an excellent rundown of the issues at play, including the prosecution’s profoundly troubling refusal to produce the affidavits in support of the search warrant.  The affidavits are the testimonial documents that provide the court with probable cause to issue warrants in the first place, and the state’s refusal to produce them should cause all who care about liberty and justice to question the character of these prosecutors and these prosecutions.  Greenfield writes:

Of the 381 named targets in the warrants, 62 were indicted.  The other 319 have no idea that the entire contents of their Facebook pages are in the hands of the DA. And they never will.

Of the 62 who have been indicted, it’s unclear whether any of them are awaiting trial. Most of the defendants in the case have either pleaded guilty or had their cases dismissed. Notably, the court only mentioned that 62 were indicted. There was no mention of how many of the 62 who were indicted have since had their cases dismissed.

But they share the problem with the 319: the ones who were indicted, whether they pleaded guilty or not, have never seen the affidavit in support of the warrant, as the prosecution has refused to disclose it. It’s not that it hasn’t been demanded, or that they aren’t obligated to disclose it, but they haven’t.

Bear in mind, the ex-post remedy is suppression for all the evils wrapped up in this warrant. No probable cause? Suppress. No particularity? Suppress. Failure to disclose? Suppress.  Not going to trial, whether because you were never indicted, case dismissed or pleaded guilty? The law offers you no remedy.

Your life spilled all over some prosecutor’s desk, and you not only don’t know it, but can’t do a damn thing about it. Ever.