Ali Cooper-Ponte writes: The Wall Street Journal and CNN recently reported that Facebook provided data about Russian advertising purchases made in the run-up to the 2016 election to Special Counsel Robert Mueller pursuant to a search warrant. According to the WSJ and CNN reports, Facebook produced copies of the ads, detailed information about the accounts that purchased the ads, and information about how the ads were targeted at Facebook users in the United States. Mueller’s choice to send Facebook a warrant and not a subpoena or a (d) order under the Electronic Communications Privacy Act (ECPA) (though he certainly may have sent Facebook and other providers additional legal process, including subpoenas and (d) orders) provides insight into the kind of information he may have been seeking and the kind of information he may have obtained.
Under its policies, Facebook requires a probable cause warrant to “compel the disclosure of the stored contents of any account, which may include messages, photos, videos, timeline posts, and location information” to the government. This is because Facebook, like other large tech companies, has adopted the Sixth Circuit’s interpretation (in United States v. Warshak) of ECPA and the Fourth Amendment as requiring a warrant to obtain emails. This matters because Congress enacted ECPA in 1986, when Mark Zuckerberg was just two-years old, roughly 15 years before Facebook would be conceived in a Harvard University dorm. ECPA has not been updated since, and, as a result, technology companies and courts are tasked with applying its antiquated language to govern the compelled disclosure of data held by modern tech companies like Facebook. [Continue reading…]