A criminal-law case out of Miami came across my desk this morning that was worth a read. I usually read only new civil cases, but this particular order, or, rather, memorandum, was relevant because of the implications to the analysis to social media accounts being accessed in civil discovery.
Occasionally, a litigant in civil discovery will ask a party to produce a download of an entire Facebook account. Considering that Facebook has been around for more than 15 years, a private Facebook account can contain exactly that: 15 years worth of photos, messages, and other content, with a variety of privacy settings. Therefore, it is undeniable that a discovery request seeking the full content of an entire account is overbroad. In this new case, Judge Milton Hirsch thought the same thing for a law-enforcement officer’s application for a warrant seeking the production of “the entirety of the records” of a social media account so law enforcement could search those records “in order to sort the evidence of the crimes articulated … which may be intermingled with innocent or innocuous documents or records.”
Judge Hirsch denied the order, then filed a memorandum explaining. His memorandum of reasoning reads in relevant part:
I well recognize that the advent of social media, a brave new world that exists not in physical space but only in cyberspace, poses questions and involves circumstances beyond the contemplation of even the most prescient of those far-sighted statesmen who drafted the Fourth Amendment in 1791. But it is not the responsibility of judges to cause the Fourth Amendment to conform to the neoteric requirements of social media. It is the responsibility of those of us who have sworn to preserve, protect, and defend the Constitution to cause law-enforcement conduct directed at social media to conform to the requirements of the Fourth Amendment. I denied the warrant application presented to me because it was inconsistent with the Fourth Amendment requirements of probable cause and particularity.
The Fourth Amendment provides that “no warrants shall issue, but upon probable cause . . . particularly describing . . . the things to be seized.” The purpose of the particularity requirement is to “stand[ ] as a bar to exploratory searches by officers armed with a general warrant . . . [and to] limit[ ] the searching officer’s discretion in the execution of a search warrant, thus safeguarding the privacy and security of individuals against arbitrary invasions of governmental officials.” Carlton v. State, 449 So. 2d 250, 252 (Fla. 1984). The requirement of particularity is not met if the warrant vests the officers executing it with discretion to determine what to search or what to seize. On the contrary: American courts have long been adamant that “As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States 275 U.S. 192, 196 (1927). “The particularity requirement is fulfilled when the warrant identifies the items to be seized by their relation to designated crimes and when the description leaves nothing to the discretion of the officers executing the warrant.” United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010). Compliance with the particularity requirement “is accomplished by removing from the officer executing the warrant all discretion as to what is to be seized.” United States v. Torch, 609 F. 2d 1088, 1089 (4th Cir. 1979). See also Pezzella v. State, 390 So. 2d 97, 99 (Fla. 3d DCA 1980) (“if a warrant fails to adequately specify the material to be seized, thereby leaving the scope of the seizure to the discretion of the executing officer, it is constitutionally overbroad”).
. . .
I respectfully submit that the warrant application that prompts the writing of this memorandum; and the identical or all-but-identical applications and warrants that are presented to me and my colleagues frequently, perhaps increasingly so; stand the notions of probable cause and particularity on their heads. On the basis of probable cause to believe that the holder of a social-media account has committed or is committing a crime, and that the social-media account may have some evidence bearing upon that crime, the social-media provider is ordered to produce, not any particular or specific item in the account, but “all records pertaining to the account,” “the entirety of the records.” The police are then to comb through the data thus produced, deciding for themselves what is germane to their investigation — or what might invite the opening of another investigation. This is in diametric opposition to the command of the Fourth Amendment, which does not “countenance open-ended warrants, to be completed while a search is being conducted and items seized or after the seizure has been carried out.” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 (1979). So far from divesting the police of discretion to determine what to keep and what to use, this procedure divests the judiciary of discretion, rendering us completely inert while the police examine, search, and decide what use to make of the entirety of a suspect’s social media account. Once a judge has decided that there is a probable-cause basis to believe that a suspect has engaged or is engaging in crime, and that the suspect’s social-media account likely contains evidence of that crime, the judge’s sole role is to order the account provider to pack up the entire account, the whole kit and caboodle, and deliver it to the police. The police will take it from there. They will decide which documents and artifacts offer the probable cause that enabled them to obtain a warrant in the first place. The judge is to have no further involvement. This is nothing less than a reprise of those general warrants visited upon our colonial forebears that spurred the enactment of the Fourth Amendment. See United States v. Irving, 347 F.Supp.3d 615, 624 (D. Kan. 2018) (recognizing that a search of “Defendant’s entire Facebook account” is “akin to a general warrant”).I realize that the migration of human behavior into cyberspace poses challenges to law enforcement that were unimagined and unimaginable even a few years ago. But I realize too that law-enforcement access to cyberspace poses challenges to Fourth Amendment-protected privacy that were unimagined and unimaginable even a few years ago. . . . What Chief Justice Roberts had to say about cell phones is equally true, perhaps even truer, about social-media accounts:
<< The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of . . . physical items. . . . That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones . . . implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. >>Riley v. California, 573 U.S. 373, ___; 134 S.Ct. 2473, 2488-89 (2014) [24 Fla. L. Weekly Fed. S921a]. See also United States v. Shipp, 392 F. Supp. 3d 300, 308 (E.D.N.Y. 2019) (describing social media accounts such as Facebook as providing “a single window through which almost every detail of a person’s life is visible”). The challenges to privacy, to freedom from the unseen but all-seeing eye of government, to the protection of that small and diminishing measure of life that is entirely one’s own, to that “right to a private enclave where [one] may lead a private life . . . [a] right [that] is the hallmark of our democracy,” United States v. Grunewald, 233 F. 2d 556, 579, 581-82 (Frank, J., dissenting) rev’d, 353 U.S. 391 (1957), are more minatory than ever in connection with searches of social-media accounts. In connection with those searches, courts must apply the traditional principles of the Fourth Amendment as carefully and sedulously as ever.
Although there are no Florida cases directly on point, there is ample federal precedent in this area. The warrant application in United States v. Chavez, 423 F.Supp.3d 194 (W.D.N.C. 2019) sought to cast its net as broadly as the application at bar: it demanded the seizure of 16 enumerated categories of records and data from the defendant’s Facebook account — in effect, it asked for the entirety of the account. Again as in the application at bar, the application in Chavez contemplated that once this seizure was completed, law enforcement would conduct a search of the entire account, determining for itself what was reflective of the probable cause that engendered the search in the first place. Citing United States v. Blake, 868 F.3d 960 (11th Cir. 2017) [27 Fla. L. Weekly Fed. C102a], the Chavez court found this procedure to be unconstitutionally overbroad and inconsistent with the Fourth Amendment particularity requirement. Chavez, 423 F.Supp.3d at 206-07.
Although the warrant application in United States v. Mercery, 2022 WL 585144 (M.D. Ga. 2022) sought Instagram, and not Facebook, account data, it was in other respects substantially identical to the warrant application in Chavez, in that it “require[d] Instagram to disclose virtually every type of data to be found in a social media account.” Id. at 4. But “warrants requiring social media sites like Facebook to disclose ‘virtually every kind of data that could be found in a social media account’ are overbroad and unconstitutional.” Id. at 6 (quoting Blake, supra, at 974). In Mercery, “the Instagram warrant [wa]s necessarily overbroad. The compelled disclosure [wa]s not tailored to evidence of the crimes under investigation . . . . Instead, the warrant amounts to a general rummage of Mercery’s entire Instagram account.” Id. at 7. To the same effect see United States v. Harvey, 2022 WL 684050 (E.D.N.Y. 2022).
The warrant in this case provides that, “This court finds that it is impractical for [Meta] to sort the evidence of the articulated crimes specifically sought herein from innocent or innocuous documents or records intermingled therewith.” When, and upon what factual predicate, did I make this finding? I conducted no hearing. I received no evidence. I took no testimony. This entirely conclusory statement is offered without a shred of support. I claim no expertise whatever with respect to computers or social media, but I find it impossible to believe that Meta (formerly Facebook), one of the largest and certainly one of the most “tech-savvy” businesses in the world, is utterly without reasonable means to conduct word searches or other specific searches of account data that would make possible a much narrower and more particularized seizure than the one sought here.
For the foregoing reasons, I denied the warrant application presented to me herein. For the same reasons, I will deny future warrant applications suffering from the same infirmities. If in so doing I err, the publication of this memorandum in support of my order of denial will afford prosecution and law enforcement an opportunity to seek my prompt correction by the appellate court.
In Re Search Warrant Application received March 13, 2023, FLWSUPP 3101SEAR (Fla. 11th Cir. Ct., Miami-Dade)
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