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The Snowden Effect

Say your doctor happens to treat a greater than average number of firefighters, police officers and other first responders. You may be an emergency worker yourself, but maybe you aren’t.

Regardless, a local prosecutor who is investigating disability fraud serves your doctor with a search warrant, demanding all the medical records he holds, including yours. The search warrant forbids the doctor from saying anything publicly about the demand, or from informing you that your personal medical records have been perused by the local D.A.

How would you feel?

Hundreds of New York police officers and firefighters have found out first-hand. The Manhattan District Attorney’s office served Facebook with a warrant for “basically all information - including private messages” connected to the accounts of 381 people during the investigation of an alleged disability fraud scheme in which 106 of those individuals were charged. The others found out after the fact that their account information had been handed over when Facebook lost its legal challenge claiming the warrant was unconstitutional in its breadth.

Chalk another incident up to what some are calling “the Snowden Effect.” Now that the former National Security Agency contractor has made it plain that millions of us have been put under a digital microscope without our knowledge in the name of national security, other public officials are taking the opportunity to say, “My work is important too.”

A secret warrant may be on the way to becoming a status symbol among the sort of crime-fighters who work in unglamorous offices rather than on the gritty streets. After all, in a recent Supreme Court decision, law enforcement officials were ordered to get a warrant before digging through a suspect’s virtual life. Securing a sweeping warrant while forbidding its target from disclosing the search is a way to follow the law’s letter while staying in the new post-Snowden surveillance spirit.

The hypothetical doctor is bound by explicit privacy rules for health care providers, but would still be subject to a court-ordered warrant all the same. Facebook doesn’t deliver medical care, but it does hold equally personal and confidential information on more than a billion of us. The temptation for investigators looking for something or someone to investigate is enormous. Sure, they could have served warrants on every firefighter in New York and then looked through their computers and smartphones to see what relevant private messages might have been shared on Facebook. But that would have allowed targets of those warrants to challenge whether prosecutors had probable cause to rifle through their private correspondence.

Instead, if Facebook had not challenged the warrant, no users would have even known their privacy had been compromised, much less had a change to object. Chris Sonderby, Facebook’s deputy general counsel, told The New York Times, “It appeared to us from the outset that there would be a large number of people who were never changed in this case.” He said, “The district attorney’s response was that those people would have their day in court.” Facebook said the D.A.’s office was unwilling to discuss narrowing the scope of its warrant.

The appeals court denied Facebook’s application to stay the ruling that the warrant couldn’t be contested, at which time Facebook relented and handed over the information. Twitter, in a similar case a few years ago, also eventually gave up when it became clear it was a legal fight it could not win. In that instance, Twitter sought to argue that user Malcolm Harris had standing to object to a subpoena of the tweets he wrote. The court, however, said the issue was between Twitter and the government, so Harris had no right to object. While the cases differ, Facebook and Twitter’s failures both give prosecutors good reason to seek as broad a warrant as they can get.

The warrant’s secrecy is also a key element of the Snowden Effect. It would have risked negative headlines if word got out that being a New York firefighter - a job always respected, and now next to sainthood in the post-9/11 world - was enough to subject you to investigation as a disability malingerer or co-conspirator. No prosecutor wants that. The alternative is to serve a secret warrant on Facebook, forbidding it from even disclosing the warrant’s existence. This option is self-evidently more appealing to a prosecutor, and allows the D.A.’s office to argue that only Facebook itself, rather than the targeted users, has standing to challenge its search, restricting any challenge to one fight instead of potentially hundreds.

And Facebook is just the target we happen to know about. There are a lot of message and email services and social networks out there. If prosecutors sought to rummage through Facebook’s user messages, we can guess that they have served similar secret warrants to Google for the contents of Gmail accounts, Yahoo for the contents of email or instant messages, Twitter for the contents of direct messages, and potentially dozens of other services, in this case and others. Each warrant faces only that company’s challenge, no matter how many hundreds of users are affected by the blanket demand for information.

The Snowden Effect seems likely to be with us for some time. Note to prosecutors: If you want to show that your law enforcement matters really matter, you need a secret dragnet, just like all the other spooks and gumshoes.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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