Law360, a legal news site for professionals, published an article about three amicus briefs filed in United States v. Facebook. CLP’s brief was featured in the headline, “$5B Facebook Deal Lets Gov’t Grab User Data, Court Told.” A second amicus brief was filed by “a coalition of four consumer advocacy groups,” and they, like EPIC, were concerned that the proposed settlement wasn’t hard enough on Facebook, “letting the social media giant off the hook for ‘innumerable practices’–including its handling of children’s and health data–that extend far beyond the allegations of the FTC’s action.” EPIC also filed a brief, but has not given up on its motion to intervene in the case.

CLP has not taken a position on Facebook’s alleged wrongdoing. Instead, we’ve argued in the brief that, regardless of any of that, an appropriate remedy does not consist in granting to the FTC and DOJ warrantless access to Facebook user data. If you haven’t yet read our brief yet, you can find it here.

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Should an individual lose the protection of our Fourth Amendment’s warrant requirement simply because he or she shares information, for a limited purpose, on Facebook?

Today the Center for the Legalization of Privacy filed its first amicus brief, in United States v. Facebook, currently pending before Federal District Court in the District of Columbia. The case concerns whether the Court should approve a settlement reached between Facebook and the Federal Trade Commission, embodied in this stipulated order.

In its brief, CLP argues that:

(1) The Stipulated Order, as written, can reasonably be interpreted to grant the FTC and the DOJ warrantless access to Facebook user data.

(2) The order, insofar as it does this, relies upon an unjustified assumption about the validity and scope of the so-called “third-party doctrine.”

(3) That assumption is particularly unjustified in light of Carpenter v. United States

From the brief’s conclusion:

CLP’s mission is to “legalize privacy” generally: to allow individuals, once again, to use the tools the Common Law put at their disposal to create and protect states of privacy for themselves, according to their own tastes and preferences. An individual should not lose the protection of our Fourth Amendment’s warrant requirement simply because he or she shares information, for a limited purpose, in order to enjoy any number of life-enhancing technologies now made available to us.

Full legalization of privacy will require, as argued above, that the third-party doctrine either be eliminated or narrowed to its original scope. CLP is aware that such a ruling by this Court would likely be overbroad given the narrow scope of the decision it’s been asked to make. CLP urges, at least, that any final order approved by this court specify that no identifiable Facebook user data be given to any government agent or agency—including the Commission, the Department of Justice, and anyone appointed at their pleasure (who are arguably de facto government agents)—without a warrant based on probable cause and particularized suspicion regarding that individual user. “Relevance” to the question of whether Facebook is or has been violating its contractual obligation to protect user privacy in a way that runs afoul of any number of FTC regulations, consent decrees, stipulated orders, etc., does not justify warrantless access to personal information about the individual citizens who are its customers. Not in a free country.

If you would like to read the entire brief, you can do so here. It’s not long as briefs go, and I think it’s quite readable. Let me know what you think in the comments, below.

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