In making the decision, prosecutors did not concede the legal arguments raised by Facebook and civil liberties and electronic privacy groups against the nondisclosure orders attached to the search warrants. According to court papers filed jointly by Facebook and the US attorney’s office in Washington on Wednesday, prosecutors determined that the underlying investigation that prompted the search warrants — the details of which are under seal — had “progressed … to the point where the [nondisclosure orders] are no longer needed.”
The announcement came less than 24 hours before an appeals court in Washington, DC, was set to hear arguments in the case. According to the joint filing, a lower court judge vacated the nondisclosure orders at the government’s request, making Facebook’s appeal of those orders moot. The lawyers asked the District of Columbia Court of Appeals to dismiss the case, and the court granted that request on Wednesday afternoon.
Nate Cardozo, a lawyer for the digital rights group Electronic Frontier Foundation, told BuzzFeed News that although the organization was pleased with the outcome, he expected there would be other cases in the future that would ultimately lead to definitive court rulings on the issue of when the government can block tech companies from notifying customers about demands for their information. EFF was one of several advocacy groups that filed briefs in the case arguing that the gag orders were unlawful.
“We’ve won the battle but the war is not over,” Cardozo said.
There’s already another case pending in federal court in Seattle that touches on some of the same concerns raised in the Facebook case. Microsoft is suing the Justice Department over a section of federal law that the government relies on to seek court orders that block tech companies from notifying subscribers when prosecutors request information. The judge ruled in February that part of Microsoft’s constitutional challenges could go forward. A trial is scheduled for June 2018.
Although most information about the case is sealed, EFF speculated in its court papers that the case relates to the mass arrests during protests in Washington on President Trump’s inauguration day. More than 200 people were arrested in the hours around the inauguration, and felony charges for rioting and property destruction are pending against the majority of those defendants.
According to information about the case that is public, federal prosecutors served Facebook with search warrants for three account records over a three-month period. A District of Columbia Superior Court judge signed off on nondisclosure orders that prevented Facebook from telling users about the warrants until Facebook complied with the government’s request.
Facebook unsuccessfully challenged the nondisclosure orders before the Superior Court judge, and appealed to the DC Court of Appeals. The appeals court issued a public order in June saying that it would accept input from any outside groups that Facebook or the government wanted to weigh in, although those groups wouldn’t be privy to details about the investigation.
Several civil liberties and electronic privacy groups filed briefs in late June opposing the nondisclosure orders, arguing that users should have the right to challenge demands for their information, particularly if they involved First Amendment–protected speech activity. Facebook’s interests may not always be the same as its customers, they said.
The DC Court of Appeals had scheduled public arguments for Sept. 14.
Arthur Spitzer, legal director of the American Civil Liberties Union of the District of Columbia, said in an email to BuzzFeed News that although the fight over the gag orders was over, it was still possible that the individuals whose Facebook accounts were at issue could go to court to challenge the government’s requests for their information.
“Now that Facebook is free to notify these three users that their accounts are subject to a search warrant, we hope the users will contact us or other lawyers to challenge the government’s attempt to conduct a fishing expedition through their Facebook accounts,” Spitzer said.
A spokesman for the US attorney’s office did not immediately return a request for comment. Facebook’s lawyer, John Roche of the law firm Perkins Coie in Washington, referred a request for comment to the company, which did not immediately respond.