D.Kan.: All SW needed to prove was that def had a Facebook account, but the police sought the entire contents of the account; suppressed as overbroad

Defendant doesn’t lose standing to contest a Facebook warrant because he’s a sex offender and the Facebook terms of service state that sex offenders can’t have accounts. He had an account, and he had standing. While this court has found a diminished expectation of privacy in Facebook accounts, it’s not nonexistent. He had messenger and private settings. The crime under investigation was whether he had an unlisted Facebook account as far as the SO registry was concerned. The search warrant, however, wanted everything in his account, and there was no need for it. It was vastly overbroad on its face. So broad, that the good faith exception did not apply. The first warrant failing means the second warrant based on the product of the first fails, too. United States v. Irving, 2018 U.S. Dist. LEXIS 167088 (D. Kan. Sep. 28, 2018):

B. The warrant was overbroad

“The Fourth Amendment provides that ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'” With regard to the particularity requirement, it “prevents general searches and strictly limits the discretion of the officer executing the warrant.” “It is not enough that the warrant makes reference to a particular offense; the warrant must ensure that the search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.”

Here, the warrant at issue (the first search warrant) states that the crime being investigated is a violation of the Kansas Offender Registry Act. This act requires a convicted sex offender to register any and all email addresses and online identities used on the internet. The warrant lists seven categories of items to be seized. These include (1) all contact and personal identifying information, including name, user identification number, birth date, gender, contact email addresses, Facebook passwords, Facebook security questions and answers, physical address, telephone numbers, screen names, and other personal identifiers; (2) all activity logs and all other documents showing the user’s posts; (3) all photoprints, including all photos uploaded by the user or photos tagging the user; (4) all Neoprints, including profile contact information, status updates, photographs, wall postings, friend lists, groups and networks, rejected friend requests, comments; (5) all other records of communications and messages made or received by the user including all private messages, chat history, video calling history, and pending friend requests; (6) all IP logs; and (7) all past and present lists of friends created by the account.

The government argues that the warrant was limited to the specific Facebook account and identified areas associated with user attribution information. This warrant, however, allowed the officer to search virtually every aspect of Defendant’s Facebook account. It required disclosure of all data and information that was contained in his account. It included all contact and personal identifying information, all private messages and chat histories, all video history, all activity logs, all IP logs, all friend requests, all rejected friend requests, all photoprints, all Neoprints, and all past and present lists of friends. In addition, there was no specified time frame so the warrant covered the entire timeframe that Defendant operated and had the Facebook account. In sum, the warrant encompassed everything in Defendant’s Facebook account and there were no set limits.

As noted by the Eleventh Circuit, Facebook searches can be limited to specific information. In United States v. Blake, the Eleventh Circuit found the government’s Facebook search to be overbroad because it “required disclosure to the government of virtually every kind of data that could be found in a social media account.” The Eleventh Circuit noted that the warrant could have been more limited in time and limited to the crime at issue. Had the request been more limited, the Eleventh Circuit stated that it “would have undermined any claim that the Facebook warrants were the internet-era version of a ‘general warrant.'”

Similarly, in this case, the warrant could have been more limited in scope and time. The only crime specified was the registration violation. This crime is simply that Defendant, as a registered sex offender, failed to register that he had Facebook account. The information that the officer sought was user attribution information and that Defendant was on Facebook and failed to register his account. The scope of the warrant should have been defined and limited by that crime. Instead, the warrant allowed for the search and seizure of Defendant’s entire Facebook account. It appears to be more akin to a general warrant rummaging through any and all of Defendant’s electronic belongings in Facebook. Thus, the warrant here was overly broad and general. Accordingly, it was an improper search warrant.