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Facebook v. United States: Facebook cites First Amendment in challenge to government non-disclosure order

Commentary First Amendment

Notice to Potential Amici Curiae, Facebook, Inc. v. United States, Nos. 17-SS-388, 17-SS-389, No. 17-SS-390 (D.C. June 14, 2017), notice hosted by the American Civil Liberties Union

On June 14, 2017, the District of Columbia Court of Appeals issued an order permitting Facebook to provide notice to parties that have an interest in serving as amici curiae in the social media company’s appeal to a District of Columbia Superior Court judgement. The lower court ruled that Facebook could not vacate a non-disclosure order related to three search warrants issued on behalf of the government. In its notice to potential amici curiae, Facebook raises two issues related to the non-disclosure order: (1) whether the order violates the First Amendment rights of Facebook and (2) whether the order violates the First Amendment rights of the users targeted by the search warrants.

This case stems from a criminal investigation by the government into potential charges against unspecified individuals. As part of this investigation, the government has sought search warrants for communication and identification data associated with three Facebook accounts. In addition, the government sought a non-disclosure order that would prevent Facebook from revealing the existence of the warrants. Facebook compiled the data requested by the government, but declined to turn it over due to the company’s belief that the non-disclosure order violated the First Amendment rights of its users.

The District of Columbia Superior Court rejected Facebook’s First Amendment argument and ordered the company to produce the data, but also amended the non-disclosure order so that it would expire thirty days after the government received the data. Facebook appealed the decision and was granted permission to provide some details to potential amici curiae by the District of Columbia Court of Appeals. The American Civil Liberties Union (“ACLU”), the Electronic Frontier Foundation ("EFF"), and a coalition of technology companies all filed briefs in support of Facebook.

In its brief, the ACLU argued that users were in a better position than internet service providers to advocate for user rights, and that the specific users in these cases should be given notice of the warrants in order to have an opportunity to challenge them. The ACLU also noted that the users would be likely to succeed in quashing or narrowing the warrants due to their overbroad reach encompassing all communication data—likely a violation of the Fourth Amendment’s particularity requirement—and identification data—which could implicate First Amendment rights related to anonymous political speech and association. The EFF and the aforementioned coalition of technology companies also argued in their briefs that the non-disclosure order has the potential to infringe the targeted users’ First Amendment rights to anonymous speech and association. Additionally, the EFF and the coalition argued that the non-disclosure order should be subject to a strict level of First Amendment scrutiny given that it is both a prior restraint and a content-based restriction on speech. 

Ann E. Marimow of the Washington Post provides an overview of the case and explains that circumstantial evidence suggests that these warrants may be linked to criminal investigations around protests of the inauguration of President Trump. Steve Dent of Engadget states that the non-disclosure order may have been the government’s response to Facebook warning some of its users earlier this year that the police were investigating them in relation to the inauguration protests. 

Phillip Takhar is a rising 2L at Harvard Law School.