In this case, the District Court of Kansas granted a motion to suppress based on a finding that the search warrant in the case was overbroad. Here, a police officer requested a search warrant for the defendant’s purported Facebook account because of a belief he was violating the sex offender registration act by maintaining an unauthorized account.
The affidavit sought: (1) all contact and personal identifying information, (2) all activity logs showing his posts, (3) all photoprints, (4) all Neoprints (which included profile and news feed information, status updates, wall posting, friend lists, future and past event posting, comments, tags, and more), (5) all chat and private messages, (6) all IP logs, and (7) all past and present lists of friends.
Based on seeing information there regarding possible child pornography, the officer got a second warrant for the Defendant’s residence. The main thrust of the motion to suppress was that the first search warrant lacked particularity and was overbroad. As a result, that negates the evidence recovered from both warrants.
The Court first addressed the Government’s argument that the defendant had no standing to contest the search of the defendant’s Facebook information. The crux of the Government’s argument was that since he was by statute an unauthorized user of Facebook, he has no legitimate expectation of privacy In rejecting this argument, the Court stated that Facebook treated the defendant as an authorized user of Facebook.
The Government then argued that the Motion should be denied because the account was public. The Court noted that there are privacy settings and that the Facebook messages are private. The Court rejected the idea that the fact that some information is publicly available on Facebook that the defendant gives up his expectation of privacy on everything on Facebook.
Next, the Government attempted to invoke Facebook’s terms of service to argue that there’s no expectation of privacy. The Court rejected the argument that Facebook users use it “at their own peril.” The Court rejected this argument, distinguishing other cases that involved a Playstation and an AOL account stating that Facebook did not terminate Defendant’s account due to a violation of its terms of service.
Turning to the subject of overbreadth, the Court noted that there was no limit regarding what the officer could look at in the Facebook account nor was there any time frame regarding the data. The lack of limits regarding scope and time in the Court’s mind justified suppression because this resembled a general warrant.
In rejecting the good faith argument, the Court relied on the fact that the officer who prepared the affidavit was the same one who executed the warrant.
The case us United States v. Irving, 2018 U.S. Dist. LEXIS 167088 (Dist. Kansas) (September 28)