On July 7th, 2016, just one day after Diamond Reynolds streamed video of a police officer shooting and killing her boyfriend, Philando Castile, the Minnesota Bureau of Criminal Apprehension began working to obtain records from Reynoldsโs phone. The BCA, which was in charge of investigating Castileโs death, submitted a preservation request to Facebook for Reynoldsโ accounts, and obtained a search warrant one day later. The BCA also served a search warrant on Sprint for Reynoldโs cell phone records.
BCA took things one step furtherโthey ordered Facebook and Sprint not to tell Reynolds that investigators intended to rifle through her accounts.
Facebook opposed the gag order and, after weeks of discussion between the BCA and a lawyer at Facebook, the warrant was rescinded altogether. Sprint, however, complied with the warrant, and turned over Reynoldsโ call records, voicemails, and cell tower information that revealed her location.
The newly released correspondence reveals how Facebook interacted with law enforcement in the high-profile case, and juxtaposes the social media companyโs opposition with Sprintโs compliance. The warrant applications, as well as emails between BCA special agent in charge Scott Mueller and Facebook associate general counsel Gavin Corn, were recently released to journalist Tony Webster in response to a public records request. Webster shared the files with Gizmodo.
Companies like Facebook walk a delicate line with law enforcement agencies. They donโt want to appear welcoming to criminals, and providing information when theyโre able to gives companies some cover when they canโt turn over encrypted data. But if companies are too quick to turn over information, they can face backlash from their users and criticism from civil liberties groups.
Facebook and Sprint regularly receive search warrants from law enforcementโso frequently, in fact, that the companies have automated portals for agencies to submit their requests. But itโs Facebookโs policy to notify users when their data is requested, a spokesperson told Gizmodo. (Sprint didnโt immediately return a request for comment, but weโll update if we hear back.)
โOur policy is to notify people about law enforcement requests for their information before disclosure unless weโre legally barred from doing so. In this case, we decided to challenge gag orders on our ability to provide this important notice, and the authorities ultimately withdrew these warrants altogether,โ the spokesperson said.
Between July and December 2016, the most recent period for which data is available, Facebook received 14,736 search warrants from US law enforcement agencies. It produced some data in response to over 85 percent of those warrants. Sprint received 10,194 search warrants between January and June 2016 (its most recent reporting period), but does not disclose how often it complies with warrants.
In Reynoldsโ case, the BCA requested all data from her three Facebook accounts, including messages, wall posts, and photographs with metadata that would show when the picture was taken and what device was used. The request spanned from July 4th, two days before the shooting, until July 8th. BCA also requested data from Castileโs account for the same time period.
The bureau also requested a log of Reynoldsโ calls and text messages from Sprint, as well as cell phone tower data that would reveal her location during the four-day period. Sprint complied, sending the voicemails in August and additional data in October.
In contrast, investigators subpoenaed the phone records of officer Jeronimoย Yanez, who shot Castile, that covered just one dayโfrom July 6th at 9pm through July 7th at midnight.
The BCA justified its request by saying it was looking for evidence of โcriminal activityโ conducted by the couple. Shortly after Castileโs death, Officer Yanez claimed that he smelled weed in the vehicle; Reynolds admitted this was true later, but said neither she nor Castile had been smoking at the time. Yanez also reportedly told the couple they had been pulled over for a broken taillight, though he also claimed he stopped the vehicle because he believed Castile fit the description of someone who was involved in a nearby robbery. That claim was never validated. (A spokesperson for BCA declined to comment for this story.)
โIndividuals frequently call and/or text messages to each other regarding criminal activity during and/or after and [sic] event has occurred,โ BCA special agent Bill OโDonnell wrote in the warrant application. โThe Affiant is also of the belief that a review and analysis of text messages and chats regarding the individuals involved in this incident may in fact assist in corroborating or refuting statements made by the individual involved in this investigation.โ
The warrants were accompanied by indefinite gag orders that, if enforced, would have prevented Facebook and Sprintย from ever notifying Reynolds about the search of her messages.
Corn argued that Facebook should be allowed to notify Reynolds and Castileโs family about the warrants, the emails show. BCAโs investigation into the shooting was already public and had been discussed by Minnesota Governor Mark Dayton, so there was no reason for secrecy. Facebook had also temporarily preserved data from Reynoldsโ and Castileโs accounts, so even if Reynolds was informed of the warrant, she wouldnโt be able to erase data.
โWe respectfully request that you seek to formally remove or strike the nondisclosure orders included with the warrants. Facebook then intends to provide notice to the users (including the deceased userโs next of kin and legal representative(s)) and to allow the users a minimum of 10 days to submit any objections they may have to the Court over the basis for, or scope of, these warrants,โ Corn wrote.
Even though Corn asked to speak with a lawyer with the Minnesota Attorney Generalโs Office or the Department of Justice, Mueller demurred, apparently preferring to handle the legal argument himself.
Mueller asked if Facebook would consider a delayed notification that would allow BCA to search Reynoldsโ account before she was notified. After more than a week of back-and-forth, Corn warned Mueller that Facebook would file a legal challenge to the warrants.
โThe sooner you can tell us whether you will be rescinding the warrants the better as we are preparing legal filings now,โ he wrote.
On July 20, Mueller finally rescinded the warrants to Facebook.
Although it has taken nearly a year for her suspicions to be proven correct, Reynolds believed in the aftermath of the shooting that she was being treated like a suspect. โI was treated like a criminal,โ she said on the day after the shooting. โI was treated like I was the one who did this.โ
Reynolds said that police took her phone away after she live-streamed the shooting, and that she begged them to give it back, worrying they would take down the video from her Facebook page. The video did indeed disappear for about an hour, which Facebook attributed to a โtechnical glitch,โ and was later reinstated.
โDiamond was not a suspect and was nothing but a victim in this case,โ her attorney, Larry Rogers Jr., told Gizmodo. โI did think it was an invasion of her personal privacy to begin to dig into her personal communications when she was nothing other than a witness and a victim.โ
Rogers said that Sprint apparently complied with the gag orderโit never informed Rogers that it was turning over Reynoldsโ phone records. He said that details about BCAโs investigation into Reynoldsโ communications have only recently become known after Jeronimo Yanez, the officer who shot Castile, was acquitted last week.
โItโs an example of how far the authorities go in some instances,โ Rogers said. โWhen it relates to investigation of witnesses, I think itโs entirely questionable conduct.โ
