Manhattan DA Cyrus Vance, Jr., left, and Gibson Dunn partner Thomas Dupree, Jr. argue before New York’s Court of Appeals in Albany Tuesday. Photo: Tim Roske.

ALBANY – An investigation of 381 Facebook account holders by the Manhattan District Attorney’s Office could threaten the confidentiality of all Facebook users in New York, a lawyer for the company argued Tuesday before the state’s highest court.

Thomas Dupree Jr. told the Court of Appeals that if it determines that Facebook cannot challenge the search warrants issued by District Attorney Cyrus Vance Jr. in a probe of an alleged public pension scam, then the social media company’s ability to resist requests by other prosecutors for unreasonable requests for customers’ data will be crippled.

“The DA’s ultimate position in this case is chilling,”Dupree argued in Matter of 381 Search Warrants Directed to Facebook (New York County District Attorney’s Office), 16. “Under his view, his office could seize the entire digital lives of every person in New York City.”

He maintained that under the federal Stored Communications Act, Facebook has the right to challenge the search warrants as overbroad under the Fourth Amendment. He said the warrants were “patently unconstitutional” on their face.

Dupree, a litigation partner at Gibson, Dunn & Crutcher in Washington, D.C., said that Facebook generally complies with subpoenas and search warrants from prosecutors seeking information contained in its accounts. But it has challenged Vance’s search warrants because of the all-inclusive nature of the information sought.

“The one [request for information] in this case is far and away the largest we have ever received,” he said. “We’ve never seen anything like this. … The warrants themselves were the equivalent of the 18th century general warrants in that they had no time restrictions, no content restrictions. They didn’t link the material they sought to the alleged crime.”

The warrants were issued as part of an investigation into whether New York City police officers, firefighters and others had participated in a scheme to fraudulently receive Social Security disability benefits.

After Facebook’s attempts to quash the warrants were denied, the company complied with the warrants, and the investigations by Vance’s office have largely been concluded.

But Facebook has continued to seek the right to challenge the search warrants’ constitutionality. Facebook wants to compel Vance’s office to make public an affidavit justifying the warrants that was withheld by prosecutors.

Vance, arguing in person for only the second time before the Court of Appeals since becoming district attorney in 2010, countered that a state Supreme Court justice upheld the sufficiency of the search warrants in September 2013.

He said Facebook’s standing to challenge the constitutionality of the search warrants on its customers’ behalf is contrary to New York Criminal Procedure Law, and has been found groundless by the Appellate Division, First Department (NYLJ, July 22, 2015).

Only the defendants whose information was sought as part of the investigation have standing to challenge the warrants, Vance said, not Facebook or any other third party that he said is a mere “repository” of the user accounts.

Vance said the subjects of some investigations inevitably feel intruded upon, whether it is in a Facebook account or a handwritten diary. “Law enforcement is also going to be bumping up against people’s privacy,” he said. “That is the nature of what we do.”

Judge Jenny Rivera wondered aloud Tuesday whether the ease with which personal information can now be accumulated and saved—and transmitted to prosecutors or others with just a keystroke—may demand a rethinking of citizens’ privacy concerns.

“The world we live in, digital and electronic, is different when it comes to privacy, right?” Rivera said. “That underlying concept of the way people now maintain the most intimate of details requires perhaps a different consideration or contextualization of these constitutional protections.”

The case was the first in which the court’s newest judge, Rowan Wilson, participated. Wilson, a former Cravath, Swaine & Moore partner, was confirmed on Monday by the state Senate as associate judge of the Court of Appeals (NYLJ, Feb. 7).

Wilson’s questioning of Vance suggested that the new judge was interested in whether the court could invoke the state constitution to provide greater Fourth Amendment protections for New York citizens than what the federal constitution provides for Americans as a whole.

The court is likely to rule in the Facebook matter by the end of March. Judge Michael Garcia took no part in Tuesday’s 35 minutes of oral arguments.

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