by Paul Alan Levy
An important appeal is pending in the District of Columbia Court of Appeals – the highest appellate court in D.C. The federal government served D.C. warrants on Facebook, demanding access to the entirety of 90 days worth of communications in three separate Facebook accounts, including identifying information. (Presumably, the reason why the case is in local court rather than federal district court is that D.C. felonies are prosecuted in the local courts but by the federal government). The warrant arrived with a court order forbidding Facebook from disclosing the existence of the warrants to the users so that they could seek judicial protection against the invasion of their free speech rights. It appears that the warrant was issued by a trial-level judicial officer, that a motion to quash the non-disclosure warrant was denied, and that Facebook appealed. We know all of this because Facebook was allowed to issue a court-approved notice inviting possible amicus briefs in support of its position. Other than the court-authorized notice, we don’t know anything about the facts of the case because the entire record is under seal, including the rulings below and Facebook’s own appellate brief. We do not even know whether Facebook ever sought to block enforcement of the warrants on grounds other than its inability to notify the Doe targets of the subpoena of the assault on their privacy, whether there has been any ruling on the merits of the warrants, or whether Facebook has appealed from any such order. In fact, the existence of the appeal could not be found on a search of the DC Court of Appeals online docket – the Clerk’s Office confirmed to me this afternoon than outsiders are not supposed to be able to see the case. The statement of facts in the court-approved notice indicates that the denial of the motion to quash the non-disclosure order also ordered compliance with the warrants, but that this obligation has been stayed pending this appeal.
Public Citizen has joined an amicus brief prepared by the ACLU and the ACLU of D.C., supporting Facebook’s appeal.
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