So much of our lives today are conducted online that it’s essential that we know who has access to our information. And that’s especially true when it’s the government that’s doing the prying into our emails, texts, and Facebook updates.
A recent case, in which Facebook acted in the perhaps surprising role of advocate for the ordinary citizen — two cheers for Mark Zuckerberg — made clear just how hard the government is working to hide its investigation of citizens’ activities online.
Facebook, Verizon, and similar companies get tens of thousands of secret requests apiece from the government for information ostensibly needed to investigate crimes. But citizens and civil rights groups are left largely in the dark about these requests.
As we know all too well from history — consider the FBI’s surveillance of civil rights groups in the ’60s — investigative powers wielded in secret create openings for unconstitutional abuses.
In September, Facebook prevailed in a months-long effort to lift a government gag order covering three search warrants the company had received. The Department of Justice had sought, in early February, access to thousands of records associated with three Facebook users alleged to have helped organize the Inauguration Day protests in DC — in which protesters in black masks were arrested en masse after smashing windows and setting a limousine on fire.
The Superior Court of the District of Columbia approved the government’s request for the information, and issued a nondisclosure order barring Facebook from telling users that the government was looking at their data. After seven months of litigation challenging the non-disclosure provision, Facebook finally won an exceptional victory for transparency and governmental accountability in the DC Court of Appeals.
Facebook challenged the nondisclosure orders in this case because the investigation raised significant First Amendment concerns. The warrants required the company to disclose massive amounts of information concerning people who “liked” the page associated with the planned protests, as well as a host of other data closely linked to the exercise of expressive and associational freedoms: comments, photos, and messages containing information about political organizing and affiliations, for instance.
While Facebook could not challenge the constitutionality of the warrants itself, had the company not pushed back on the gag order, the targets would have been wholly unaware of the government’s demands — and unable to assert their own constitutional rights in response. Once notified of the requests, the targets retained the ACLU to represent them and succeeded in narrowing the government’s demands.