Facebook has been cooperating with law-enforcement officials for some time when it comes to handing over user data as evidence in court cases. But the situation is less clear when those legal requests are made by others — a predicament being highlighted right now in a murder case in Oregon, where the social network has (so far) refused to comply with requests from the defense team of a murder suspect to provide data that could prove beneficial to the defendant’s case.
The case has some potentially big consequences. If Facebook gets held in contempt of the court for not handing over the data, it could be required to pay up to one percent of its profits as a penalty. Facebook reported $1 billion in profits in 2011, and for the first three quarters of 2012 has reported profits of $811 million.
On the other hand, if Facebook does end up providing the data as requested by the defense team, it could end up setting a precedent for how it and other companies like Google and Twitter will be required to share private user data in the future in legal defense cases, with or without user consent. That could be a boost for defense teams, but a potential setback for individual users whose data may be in question.
“As you can imagine, Facebook gets countless orders and subpoenas like this from courts throughout the country,” Facebook lawyer Randy Tyler told the court, according to a report in the Oregonian.
Or, this could also end in a fizzle with no data provided, and no action taken, as was the outcome of another data request last year in Oregon. In that case, a judge ordered a prosecuting team to request from Google the search history of a woman who had been raped. When prosecutors refused, the judge did not challenge it.
In the current case, lawyers for murder suspect, Parrish Bennette Jr., want to obtain an online conversation between two friends of his, in which one of them apparently says he lied to the police about the Bennette’s role in the murder.
Facebook has refused for what looks like two reasons: Tyler and another Facebook lawyer, Misha Isaak, say that the defense didn’t follow correct procedure in their subpoena. And they have cited the Stored Communications Act, which protects a users’ Facebook data, tweets, Google searches and other online data held by third parties from being shared with others.
The Act has a clause in it that excepts requests for the data made by the authorities. That means when public prosecutors, police or other officials make requests — a search warrant issued on probable cause — Facebook complies — as it did in this robbery-and-murder case in Boston last year.
In the Bennette murder case, the prosecutors had not requested the data, but the judge, Richard Baldwin, on a request from the defense team led by Thaddeus Betz, had already ordered Facebook to provide the data of the conversation. Facebook would not comply with the subpoena.
Part of the argument for not complying with the subpoena goes like this: while search warrants (issued by the court)
- come after the review of a sworn application by law enforcement, in which the court finds probable cause supporting a search; subpoenas can be issued by any party to any litigation and there is no sworn application, no judicial review and no probable cause requirement. In short, the argument is that that they are less rigorous and have more loopholes for abuse.
Since Facebook refused to comply with the subpoena, another judge, Youlee You, has taken over the case. Betz has now asked her to hold Facebook in contempt of court — but so far she has not done so. She is instead letting Betz make his request again, and is letting Facebook submit documentation proving that correct procedures have not been followed. She is also planning to examine the correspondence between Facebook and the defence team.
One route out of this is for the defense to make an appeal to the court to order the users in question to hand over the data communications, rather than Facebook itself.
“Directing subpoenas to the parties of the communication eliminates a service provider ‘short cut’ and ensures that the person has knowledge of, and an opportunity to resist, the demand for their communications,” a legal expert close to the situation notes.
This doesn’t mean that Facebook data is not already getting regularly used in courts in Oregon, however. In one case from just earlier this week, an 18-year-old man in another part of Oregon was arrested for drunk driving, busting up others’ property, and then ditching the scene, after two people passed police a status update of his confessing to it.
We have contacted Facebook for further comment on the case and will update as we learn more.