To be Argued by:
THOMAS H. DUPREE, JR.
(Time Requested: 30 Minutes)
APL-2015-00318
New York County Clerk’s Index Nos. 30207/13 and 30178/14
Court of Appeals
of the
State of New York
In re 381 Search Warrants Directed to Facebook, Inc. and Dated July 23, 2013
FACEBOOK, INC.,
Appellant,
– against –
NEW YORK COUNTY DISTRICT ATTORNEY’S OFFICE,
Respondent.
–––––––––––––––––––––––––––––––
In the Matter of the Motion to Compel Disclosure of the Supporting Affidavit
Relating to Certain Search Warrants Directed to Facebook, Inc., Dated July 23, 2013
FACEBOOK, INC.,
Appellant,
– against –
NEW YORK COUNTY DISTRICT ATTORNEY’S OFFICE,
Respondent.
REPLY BRIEF OF APPELLANT
Of Counsel:
ORIN SNYDER
ALEXANDER H. SOUTHWELL
THOMAS H. DUPREE, JR.
(admitted pro hac vice)
GABRIEL K. GILLETT
GIBSON, DUNN & CRUTCHER LLP
Attorneys for Appellant
200 Park Avenue
New York, New York 10166
Tel.: (212) 351-4000
Fax: (212) 351-4035
June 17, 2016
i
CORPORATE DISCLOSURE STATEMENT
Pursuant to 22 NYCRR § 500.1(f), Appellant Facebook, Inc. states that it is
a publicly traded corporation, has no corporate parent, and has the following
significant subsidiaries:
• Andale, Inc. (Delaware)
• Edge Network Services Limited (Ireland)
• Facebook Ireland Holdings Limited (Ireland)
• Facebook Ireland Limited (Ireland)
• Facebook Operations, LLC (Delaware)
• Instagram, LLC (Delaware)
• Oculus VR, LLC (Delaware)
• Parse, LLC (Delaware)
• Pinnacle Sweden AB (Sweden)
• Siculus, LLC (Delaware)
• Vitesse, LLC (Delaware)
• WhatsApp Inc. (Delaware)
ii
TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 7
I. FACEBOOK HAS A RIGHT TO CHALLENGE THE SCA
WARRANTS. .................................................................................................. 7
A. The Stored Communications Act and New York Law Both
Authorize Facebook’s Motion to Quash. .............................................. 7
B. Facebook Has Standing to Defend the Constitutional Rights of
Its Users. ..............................................................................................10
C. The Trial Court’s Order Is Appealable. ..............................................15
II. THE SCA WARRANTS ARE UNCONSTITUTIONAL.............................25
A. The SCA Warrants Violate the Fourth Amendment. ..........................25
B. The Gag Provisions Violate the Stored Communications Act
and the First Amendment. ...................................................................29
III. THE GOVERNMENT HAS IMPROPERLY WITHHELD THE
INVESTIGATOR’S AFFIDAVIT. ...............................................................34
CONCLUSION ........................................................................................................39
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Camacho v. Brandon,
317 F.3d 153 (2d Cir. 2003) ............................................................................... 14
Campbell v. Louisiana,
523 U.S. 392 (1998) ............................................................................................ 14
Danco Labs., Ltd. v. Chem. Works of Gedeon Richter, Ltd.,
274 A.D.2d 1 (1st Dep’t 2000) ........................................................................... 34
Dist. Attorney of Kings Cty. v. Angelo G.,
48 A.D.2d 576 (2d Dep’t 1975) .......................................................................... 18
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000) ............................................................................................ 23
Globe Newspaper Co. v. Superior Court for Norfolk Cty.,
457 U.S. 596 (1982) ............................................................................................ 25
Groh v. Ramirez,
540 U.S. 551 (2004) ............................................................................................ 27
In the Matter of the Search of Info. Associated with the Facebook
Account Identified by the Username Aaron.Alexis,
21 F. Supp. 3d 1 (D.D.C. 2013) .......................................................................... 28
In the Matter of the Search of Premises Known as: Three Hotmail
Email Accounts,
2016 WL 1239916 (D. Kan. Mar. 28, 2016) ........................................................ 2
In the Matter of Search Warrant for: [Redacted]@hotmail.com,
74 F. Supp. 3d 1184 (N.D. Cal. 2014) ................................................................ 30
In re Directives to Yahoo! Inc. Pursuant to Section 105B of the
Foreign Intelligence Surveillance Act,
2008 WL 10632524 (FISA Ct. Rev. Aug. 22, 2008) ......................................... 12
TABLE OF AUTHORITIES
(continued)
Page(s)
iv
In re Google Email Accounts,
99 F. Supp. 3d 992 (D. Alaska 2015) ................................................................... 9
In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders,
562 F. Supp. 2d 876 (S.D. Tex. 2008) .............................................. 31, 33, 34, 37
In re Search Warrants Issued on April 26, 2004,
353 F. Supp. 2d 584 (D. Md. 2004) .................................................................... 39
In re Verizon Internet Servs., Inc.,
257 F. Supp. 2d 244 (D.D.C. 2003),
rev’d on other grounds sub nom. Recording Indus. Ass’n of Am.,
Inc. v. Verizon Internet Servs., Inc.,
351 F.3d 1229 (D.C. Cir. 2003) .......................................................................... 11
In re Warrant to Search a Certain E-Mail Account Controlled &
Maintained by Microsoft Corp.,
15 F. Supp. 3d 466 (S.D.N.Y. 2014) .................................................................. 20
Los Angeles Cty. v. Davis,
440 U.S. 625 (1979) ............................................................................................ 23
Matter of Abrams,
62 N.Y.2d 183 (1984) ..................................................................... 5, 9, 16, 20, 21
Matter of ADA Merri Bernstein,
67 N.Y.2d 852 (1986) ......................................................................................... 18
Matter of Alphonso C.,
38 N.Y.2d 923 (1976) ......................................................................................... 18
Matter of Ass’n for a Better Long Island, Inc., v. NYS Dep’t of Envt’l
Conservation,
23 N.Y.3d 1 (2014) ............................................................................................. 15
Matter of B.T. Prods. v. Barr,
44 N.Y.2d 226 (1978) ........................................................................................... 7
TABLE OF AUTHORITIES
(continued)
Page(s)
v
Matter of Hearst Corp. v. Clyne,
50 N.Y.2d 707 (1980) ......................................................................................... 24
Matter of Newsday, Inc. v. Sise,
71 N.Y.2d 146 (1987) ......................................................................................... 36
Matter of Newsday v. Morgenthau,
3 N.Y.3d 651 (2004) ..................................................................................... 17, 19
New York Cty. Lawyers’ Ass’n v. New York,
294 A.D.2d 69 (1st Dep’t 2002) ............................................................... 4, 13, 14
People v. Chahine,
150 Misc. 2d 242 (Crim. Ct. N.Y. City 1991) .................................................... 26
People v. Marin,
86 A.D.2d 40 (2d Dep’t 1982) ........................................................ 5, 9, 16, 18, 19
People v. Purley,
297 A.D.2d 499 (1st Dep’t 2002) ....................................................................... 16
Planned Parenthood of Se. Pennsylvania v. Casey,
505 U.S. 833 (1992) ............................................................................................ 11
Riley v. California,
134 S. Ct. 2473 (2014) .......................................................................................... 2
Rowe Entm’t, Inc. v. William Morris Agency, Inc.,
205 F.R.D. 421 (S.D.N.Y. 2002) ........................................................................ 13
Sierra Club v. Vill. of Painted Post,
26 N.Y.3d 301 (2015) ......................................................................................... 15
Soc’y of Plastics Indus., Inc. v. Cty. of Suffolk,
77 N.Y.2d 761 (1991) ......................................................................................... 10
Stenberg v. Carhart,
530 U.S. 914 (2000) ............................................................................................ 11
TABLE OF AUTHORITIES
(continued)
Page(s)
vi
United States v. All Funds on Deposit at Wells Fargo Bank,
643 F. Supp. 2d 577 (S.D.N.Y. 2009) ................................................................ 36
United States v. Amodeo,
44 F.3d 141 (2d Cir. 1995) ................................................................................. 36
United States v. Bach,
310 F.3d 1063 (8th Cir. 2002) ............................................................................ 22
United States v. Custer Battlefield Museum,
658 F.3d 1188 (9th Cir. 2011) ............................................................................ 37
United States v. Galpin,
720 F.3d 436 (2d Cir. 2013) ............................................................................... 25
United States v. Quiroz,
22 F.3d 489 (2d Cir. 1994) ................................................................................. 32
United States v. Rosa,
626 F.3d 56 (2d Cir. 2010) ................................................................................. 25
Wheeler v. State,
2016 WL 825395 (Del. Mar. 2, 2016) .................................................................. 2
Statutes
18 U.S.C. § 2703(a) ................................................................................................. 21
18 U.S.C. § 2703(d) ..........................................................................................passim
18 U.S.C. § 2703(g) ................................................................................................. 20
18 U.S.C. § 2705(b) ..................................................................................... 29, 30, 31
Criminal Procedure Law art. 710 ............................................................................... 9
Criminal Procedure Law § 240.20(1)(h) .................................................................. 26
Judiciary Law § 509(a) ............................................................................................ 36
TABLE OF AUTHORITIES
(continued)
Page(s)
vii
Other Authorities
4 N.Y. Jur. 2d Appellate Review § 613 ................................................................... 32
Facebook, Global Government Requests Report (Apr. 28, 2016) ........................... 24
INTRODUCTION
The Government’s opposition brief is striking for what it does not say.
Nowhere does the Government actually defend the constitutionality of the
hundreds of bulk warrants it issued under the Stored Communications Act.
Instead, it advances a host of baseless procedural objections, all designed to
prevent this Court from reaching the merits and resolving the important
constitutional questions presented by this appeal. And when—on page 44—the
Government at long last addresses the Fourth Amendment, it asserts that this Court
is powerless to adjudicate the merits because it has not seen the investigator’s
affidavit that the Government adamantly refuses to disclose.
The Government appears to be playing a shell game at the expense of the
hundreds of New York citizens whose constitutional rights it blatantly violated.
The power the Government claims in this case is breathtaking. It asserts that it can
seize the personal information of nearly four hundred people based on plainly
defective and overbroad warrants it declines to defend and an affidavit it refuses to
disclose—and yet those citizens, unless they are one of the few who were actually
indicted, have no recourse for the invasion of their constitutional rights.
The questions presented by this appeal are questions of first impression for
this Court. That said, the United States Supreme Court and many other courts have
addressed very similar questions concerning the constitutional limits on data
2
seizures in the digital age. The Supreme Court recently recognized, in a
unanimous opinion, that “[t]he sum of an individual’s private life can be
reconstructed” through his or her electronic information, and that equating the
“data stored on a cell phone” to “physical items” “is like saying a ride on
horseback is materially indistinguishable from a flight to the moon.” Riley v.
California, 134 S. Ct. 2473, 2488-90 (2014).
The Delaware Supreme Court, in a new ruling issued after Facebook filed its
opening brief, expressed deep concern over the constitutional dangers raised by
expansive Government seizures of electronic data:
Warrants directed to digital information present unique challenges in
satisfying the particularity requirement, given the unprecedented
volume of private information stored on devices containing such data.
The expansive universe of digital and electronic information, and the
intermingling data, complicates balancing the privacy interests of our
citizens and the legitimate efforts of law enforcement in investigating
criminal activity.
Wheeler v. State, 2016 WL 825395, at *14 (Del. Mar. 2, 2016) (footnotes omitted).
The court concluded: “[T]he risk that warrants for digital and electronic devices
take on the character of ‘general warrants’ is substantial. This reality necessitates
heightened vigilance at the outset, on the part of judicial officers to guard against
unjustified invasions of privacy.” Id. at *20; see also In the Matter of the Search
of Premises Known as: Three Hotmail Email Accounts, 2016 WL 1239916, at *17
(D. Kan. Mar. 28, 2016) (“[C]ontinuing to apply . . . physical search precedent to
3
digital searches is ill-suited for today’s increasingly digital world because digital
searches may reveal far more than a search of a home, which ‘when it comes to the
Fourth Amendment, the home is first among equals.’” (citation omitted)).
Although the trend in the caselaw from around the nation is clear and
unmistakable, the Government urges this Court to chart New York on a different
and dangerous course. The Government asks this Court to interpret the law as no
other court has, and to grant the Government sweeping powers to seize vast
amounts of New Yorkers’ private information, without notice, and with no
opportunity to challenge the seizure in court.
The importance of this Court’s decision—and the potential impact on the
privacy rights of the millions of citizens who trust Facebook and other service
providers with their personal information—is reflected in the many amici who
have lined up in support of Facebook in this appeal, including the New York Civil
Liberties Union, American Civil Liberties Union, the Brennan Center for Justice,
the Electronic Frontier Foundation, and the New York State Association of
Criminal Defense Lawyers, as well as Google, Twitter, Yelp, Dropbox, Pinterest,
Microsoft, Foursquare, Kickstarter, Meetup and Vimeo.
The Government falls short in its attempts to defend the decision below and
to insulate its actions from this Court’s scrutiny:
4
• The Government effectively concedes that the First Department erred
when it held that Facebook had no right to move to quash the SCA warrants under
18 U.S.C. § 2703(d). See Gov’t Br. 42 n.11. Congress determined that service
providers like Facebook are uniquely positioned and specifically granted them
standing to challenge SCA warrants.
• The Government’s argument that Facebook lacks standing to
challenge the warrants on Fourth Amendment grounds is contradicted by the plain
language of Section 2703(d), which gives service providers standing to challenge
SCA warrants that impose an “undue burden.” Being compelled to assist the
Government in a search that violates the constitutional rights of hundreds of its
users indisputably amounts to an “undue burden” on Facebook. Moreover, the
Government does not seriously dispute Facebook’s alternative claim to standing—
that it may assert the Fourth Amendment rights of its users under New York’s
well-settled test for third-party standing. See New York Cty. Lawyers’ Ass’n v.
New York, 294 A.D.2d 69, 74-75 (1st Dep’t 2002).
• The Government’s attempt to terminate this appeal by classifying the
trial court’s ruling as “nonappealable” is mistaken because it rests on the false
premise that an SCA warrant is the same thing as a traditional search warrant.
Because an SCA warrant is far more akin to a subpoena than a traditional search
warrant, the denial of Facebook’s motion to quash the SCA warrants is appealable.
5
New York courts have long held that a third party may appeal orders that it collect
and produce information in its possession. See Matter of Abrams, 62 N.Y.2d 183,
192 (1984); People v. Marin, 86 A.D.2d 40, 42 (2d Dep’t 1982).
• Remarkably, the Government does not defend the constitutionality of
the SCA warrants. Its silence is tantamount to a concession that these carbon-copy
warrants, which demand virtually all records and information concerning anything
that nearly 400 people have ever done on Facebook from the moment they created
their accounts, are blatantly unconstitutional. Instead, the Government makes the
unsupportable argument that this Court cannot assess the warrants’
constitutionality without seeing the investigator’s affidavit that the Government
has refused to disclose. Of course, this Court can and should invalidate the
warrants based on their shocking overbreadth, their lack of particularity, and their
total absence of meaningful limitations. They are facially invalid and
unconstitutional.
• The Government fails in its attempt to salvage the indefensible
perpetual gag orders imposed on Facebook, which violate both the SCA and the
First Amendment. The Government’s tortured explanation—that, despite their
plain language, the orders were not truly perpetual because the trial court
“implicitly recognized” that the Government intended to seek their modification
once the investigation had concluded (Gov’t Br. 52)—cannot be taken seriously.
6
This Court should reach the same result that all other courts to have considered the
question have reached, and declare the perpetual gag orders unlawful.
• The Government maintains its obstinate refusal to produce the
investigator’s affidavit—even though its investigation has ended and there is no
further need for secrecy, and even though the Government takes the position that
this Court cannot adjudicate Facebook’s Fourth Amendment challenge without the
affidavit. Many courts, including New York courts, have held that materials
supporting a warrant are judicial documents encompassed by the public’s right of
access—at least once the investigation has concluded—and the Government offers
no justification for continuing to conceal the affidavit. The Government’s obvious,
if unspoken, reason for refusing to disclose the affidavit is that it does not want the
public—or this Court—to see how patently unconstitutional its actions in this case
have been.
For all of these reasons, this Court should reverse the decision below.
Accepting the Government’s position would leave hundreds of people—never
charged with any crime—with no recourse for the Government’s violation of their
constitutional rights and no way to obtain the return of their private information,
which is still being held by the Government. As this Court has warned, “[t]o allow
the failure to prosecute . . . to serve as a shield for the allegedly illegal seizure and
retention of private property by government agents would be to make a mockery of
7
justice.” Matter of B.T. Prods. v. Barr, 44 N.Y.2d 226, 233 (1978). For the more
than 300 uncharged New York citizens whose personal information was seized and
examined by the Government, this appeal is their day in court.
ARGUMENT
I. FACEBOOK HAS A RIGHT TO CHALLENGE THE SCA
WARRANTS.
Because the SCA warrants are blatantly unconstitutional and indefensible,
the Government asserts a host of procedural objections aimed at preventing this
Court from reaching the merits. The Government challenges Facebook’s standing
to bring its constitutional claims and also argues that the trial court’s order is
“nonappealable” and insulated from appellate review.
The Government is wrong. Facebook has the right under both the Stored
Communications Act and New York law to challenge the constitutionality of the
SCA warrants, and the merits of this appeal are properly before the Court.
A. The Stored Communications Act and New York Law Both
Authorize Facebook’s Motion to Quash.
The Stored Communications Act, 18 U.S.C. § 2703(d), expressly grants
service providers like Facebook the right to move to quash SCA warrants. It
provides that “[a] court issuing an order pursuant to this section, on a motion made
promptly by the service provider, may quash or modify such order, if the
8
information or records requested are unusually voluminous in nature or compliance
with such order otherwise would cause an undue burden on such provider.”
Congress had good reasons to give service providers the right to challenge
SCA warrants. For one thing, unlike a traditional search warrant, in which law
enforcement conducts the search and seizure itself, an SCA warrant is typically
executed by the service provider. Service providers might legitimately object to
being forced to participate in what they reasonably believe is an unconstitutional
search and seizure that violates the rights of their customers or users. For another,
unlike a traditional search warrant, in which the search is limited by physical
realities (e.g., a team of police offers can only box up and cart off so much
property), a digital warrant allows law enforcement to capture the entire digital
lives of thousands of people with several strokes on a keyboard. Because it is
unrealistic to expect every one of those people to retain lawyers to challenge an
unconstitutional search—and given the potential for privacy violations on a
massive scale—Congress chose to allow service providers to challenge SCA
warrants themselves.
Facebook’s brief demonstrated that the First Department misinterpreted the
plain language of Section 2703(d) by construing it as “appl[ying] only to court
orders or subpoenas issued under subsections (b) or (c),” and thus inapplicable to
orders or warrants issued under subsection (a). A.28. The Government effectively
9
concedes the First Department’s error. It does not defend the court’s construction
of the statute, brushing aside the misreading in a footnote (see Gov’t Br. 42 n.11).
Although the Government argues that Facebook may not present its Fourth
Amendment challenges—an argument rebutted below—the Government has now
acknowledged that under the SCA’s plain language, a service provider may move
to quash an SCA warrant. Indeed, the Government expressly concedes that a
service provider has a “statutory right[ ]” to “move to quash [SCA] warrants.”
Gov’t Br. 44 (discussing In re Google Email Accounts, 99 F. Supp. 3d 992 (D.
Alaska 2015)).
The Government’s discussion of suppression motions under Criminal
Procedure Law Article 710 is entirely beside the point. See Gov’t Br. 36-37. The
discussion is irrelevant because Facebook did not move to suppress and it did not
move under Criminal Procedure Law Article 710. Neither the trial court nor the
First Department relied on or even cited Criminal Procedure Law Article 710 and it
has no bearing on the issues on appeal.
Nor does the Government dispute that Facebook may challenge the warrants
under New York law. It simply says nothing on this issue. This Court and others
have recognized that a third party may move to quash demands that it identify,
collect and produce documents. See Abrams, 62 N.Y.2d at 192; Marin, 86 A.D.2d
10
at 42. In short, both federal and New York law authorized Facebook’s motion to
quash the SCA warrants.
B. Facebook Has Standing to Defend the Constitutional Rights
of Its Users.
Although the Government now effectively concedes that Facebook was
authorized to move to quash the SCA warrants, it argues that Facebook may not
challenge the warrants under the Fourth Amendment, because Fourth Amendment
rights are “personal” and “may only be protested by those who are harmed
directly.” Gov’t Br. 35-36. But as the cases the Government cites illustrate, these
generalized principles apply to motions to suppress, not to a service provider’s
motion to quash under the SCA.
Here, Facebook’s standing to bring a Fourth Amendment challenge is
specifically conferred by the SCA itself, and “[t]he question of standing” is
therefore “answered by the statute at issue.” Soc’y of Plastics Indus., Inc. v. Cty. of
Suffolk, 77 N.Y.2d 761, 769 (1991). In addition, Facebook has third-party standing
as a matter of New York law because it is impractical for the targeted users—or at
least the more than 300 targeted users who were never indicted—to vindicate the
violation of their constitutional rights.1
1 The Government does not dispute Facebook’s standing to challenge the gag
order. See Gov’t Br. 48 n.13. Facebook plainly has standing to challenge a
court order restricting its speech.
11
1. The SCA gives Facebook standing to assert Fourth Amendment
claims on behalf of its users. Section 2703(d) authorizes Facebook to move to
quash where compliance would impose an “undue burden” on Facebook. Being
forced to assist the Government in a search that violates the constitutional rights of
hundreds of its users amounts to an “undue burden.” As the Supreme Court has
recognized, “an undue burden is an unconstitutional burden.” Planned Parenthood
of Se. Pennsylvania v. Casey, 505 U.S. 833, 877 (1992); see also Stenberg v.
Carhart, 530 U.S. 914, 952 (2000) (“[I]f a statute burdens constitutional rights”
without adequate basis, “the burden is undue.”). In addition, validation of the
Government’s unconstitutional search and seizure could undermine users’
confidence in the privacy of their information on Facebook.
A Government directive compelling a business to participate in acts that it
reasonably believes are unconstitutional and that will injure hundreds of its
customers or users—and potentially lead to the loss of many more—plainly
constitutes an “undue burden” on that business. The Government argues that harm
to users can never constitute “tangible and cognizable harms to the provider itself,”
Gov’t Br. 42, but that is clearly wrong. A potential loss of customers or goodwill
amounts to an injury sufficient to confer standing on a business. See, e.g., In re
Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 258 (D.D.C. 2003), rev’d on
other grounds sub nom. Recording Indus. Ass’n of Am., Inc. v. Verizon Internet
12
Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003) (Internet service provider has “a
vested interest in vigorously protecting its subscribers’ [constitutional] rights,
because a failure to do so could affect [its] ability to maintain and broaden its client
base”); In re Directives to Yahoo! Inc. Pursuant to Section 105B of the Foreign
Intelligence Surveillance Act, 2008 WL 10632524, at *3 (FISA Ct. Rev. Aug. 22,
2008) (finding that Yahoo “faces an injury in the nature of the burden that it must
shoulder to facilitate the government’s surveillances of its customers”).2
The Government errs in urging this Court to construe the phrase “undue
burden” narrowly. In the Government’s view, an “undue burden” can only mean
what the Government calls “practical compliance problems.” Gov’t Br. 43. But
that is not what the statute says. Congress deliberately used one of the broadest
phrases in the legal lexicon—“undue burden”—when it drafted Section 2703(d),
giving courts wide leeway to determine whether a particular burden is “undue.”
2 The Government attempts to brush Verizon aside by noting that it involved a
First Amendment rather than Fourth Amendment challenge. Gov’t Br. 40 n.9.
But the point—that a service provider is harmed when the Government violates
its users’ constitutional rights, and therefore has a strong interest in protecting
those rights—applies equally in both contexts. As to Yahoo, the Government
does not dispute that the court found that a service provider is harmed—and
bears a “burden”—by being forced to participate in schemes that implicate
Fourth Amendment rights. The Government notes that the statutory language
in that case allows a service provider to challenge the “legality” of a FISA
directive (Gov’t Br. 42-43), but Congress used even broader language in the
SCA, by allowing service providers to challenge based on an “undue burden.”
13
See, e.g., Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429
(S.D.N.Y. 2002) (describing flexible “balancing approach” to determining when a
burden is “undue” under the Federal Rules of Civil Procedure). There is no reason
to accept the cramped construction the Government prefers, which would
unnaturally limit the term “undue burden” to merely those burdens inherent in
collecting the information.3
2. Facebook also satisfies the test for third-party standing under New
York law. See New York Cty. Lawyers’ Ass’n, 294 A.D.2d at 74-75. Facebook’s
opening brief demonstrated that:
• Facebook has a “substantial relationship” with the rightholders, in that
Facebook’s users trust Facebook with their information and expect that
Facebook will resist invalid and unjustified Government demands.
• It is effectively impossible for the targeted users to vindicate their own
rights because they were kept in the dark by the gag order and because
the substantial majority of the targeted users were never indicted and thus
will never have a meaningful opportunity to challenge the SCA warrants.
3 The Government’s suggestion that Facebook has not “advanced” a claim under
Section 2703(d) is meritless. Gov’t Br. 43. Facebook expressly relied on
Section 2703(d) in challenging the warrants in the trial court, the First
Department, and this Court.
14
• Denying a service provider third-party standing would dilute the
constitutional rights of the millions of New Yorkers who use social
media such as Facebook.
The Government does not dispute that Facebook satisfies this three-part test. It
merely makes the irrelevant observation that New York County Lawyers’
Association involved a challenge to the rate of compensation for assigned counsel.
See Gov’t Br. 40. The Government also claims, incorrectly, that the lawyers’
association was merely “standing in for its members,” id., when in fact the court
held that the association had third-party standing to press claims “solely on behalf
of [the] clients” who were assigned counsel, 294 A.D.2d at 72 (emphasis added).
The test for third-party standing set forth in New York County Lawyers’
Association mirrors the test used by the Supreme Court and the Second Circuit for
when a “plaintiff may assert the constitutional claims of a third party.” Camacho
v. Brandon, 317 F.3d 153, 159 (2d Cir. 2003) (citing Campbell v. Louisiana, 523
U.S. 392, 397 (1998)).
Under the Government’s approach, it could use blatantly overbroad and
unconstitutional warrants to seize and examine the accounts of every Facebook
user in New York City—and if the Government decided not to indict anyone, it
would leave millions of citizens with no meaningful remedy for the violation of
their rights. That intolerable outcome is precisely what the third-party standing
15
doctrine is intended to prevent. As this Court emphasized in Sierra Club v. Village
of Painted Post, standing principles generally should not be applied “in an overly
restrictive manner where the result would be to completely shield a particular
action from judicial review.” 26 N.Y.3d 301, 311 (2015) (citing Matter of Ass’n
for a Better Long Island, Inc., v. NYS Dep’t of Envt’l Conservation, 23 N.Y.3d 1, 6
(2014)). The Government does not take issue with this longstanding precept of
New York law, aside from making the irrelevant point that Sierra Club arose on
different facts. Gov’t Br. 39-40.
The Government misses the mark in arguing that because some users make
some of their Facebook information available to the public, there can be no
reasonable expectation of privacy. Gov’t Br. 39. If the information were public,
the Government would have no need for an SCA warrant in the first place: it could
just capture the information itself. Moreover, even as to users who customize their
privacy settings to permit some public access, the SCA warrants demand vast
amounts of information that is not publicly accessible, such as private messages
received from other Facebook users, and membership lists of all Groups to which
the user belongs.
C. The Trial Court’s Order Is Appealable.
The trial court’s order is appealable under Matter of Abrams, which holds
that in determining appealability, a court must focus on “the true nature of the
16
proceeding,” rather than the label attached to it. 62 N.Y.2d at 191. Under that
approach, “a motion to quash subpoenas, even those issued pursuant to a criminal
investigation, is civil by nature and not subject to the rule restricting direct
appellate review of orders in criminal proceedings.” Id. at 192; see also Marin, 86
A.D.2d 40 (holding that a third party had a right to appeal an order to produce
documents for use in a criminal case). Remarkably, the Government completely
ignores both Abrams and Marin—the centerpieces of the briefing below and
Facebook’s opening brief.
1. The Government begins by erroneously claiming that the order under
review is criminal rather than civil. To determine whether a proceeding is civil or
criminal, New York courts “look[] to the true nature of the proceeding and to the
relief sought.” Abrams, 62 N.Y.2d at 191. Under this standard, the denial of
Facebook’s motion to quash is a civil order. It is “entirely collateral to and discrete
from the criminal proceeding.” People v. Purley, 297 A.D.2d 499, 501 (1st Dep’t
2002). Facebook is not a target, suspect, or defendant in the criminal disability
fraud prosecutions. This proceeding and the criminal proceeding are separate and
distinct. Indeed, the Government’s investigation and resulting prosecutions have
continued to move forward independent of the litigation.
The most that can be said is that the trial court’s ruling is related to a
criminal proceeding, in that the Government collected evidence from Facebook in
17
this proceeding that it planned to use in the criminal proceeding against various
individuals. But this is not enough: an order to produce documents does not
become nonappealable merely because the documents will be used in a criminal
proceeding. In Abrams, the Court held that a trial court order denying a motion to
quash a subpoena was a final and appealable order—even though the Government
was demanding documents for purposes of an ongoing criminal investigation.
Indeed, although the Government notes that courts have historically declined
appeals challenging traditional search warrants (Gov’t Br. 21-22), it identifies no
case holding that a denial of a motion to quash an SCA warrant is not an appealable
order. The Government has no explanation for why this Court should treat an SCA
warrant the same as a traditional search warrant when Congress, in the SCA itself,
treated an SCA warrant like a subpoena.
The Government errs in relying on Matter of Newsday v. Morgenthau, 3
N.Y.3d 651 (2004). That case holds that a motion to intervene in a criminal case to
obtain records is a criminal proceeding, whereas a motion to quash in a criminal
case is a civil proceeding. See id. at 651 & n.1. This case involves the latter
situation (a motion to quash), not the former (a motion to intervene). The
Government’s attempt to liken Facebook to Newsday—“Facebook, like Newsday
is seeking to involve itself in the criminal process” (Gov’t Br. 21)—distorts what
happened here. Facebook did not seek to involve itself in this dispute; to the
18
contrary, the Government pulled Facebook into this case when it demanded that
Facebook identify, collect, and deliver to the Government virtually all the
information in 381 Facebook accounts.4
The Government also ignores People v. Marin, which recognizes that New
York law permits a third party to appeal orders directing it to produce documents
for use in a criminal proceeding. Because such an order is final as to that third
party—and because the third party would be unable to challenge the order by
appealing the judgment in the criminal proceeding where it is not a defendant—
New York courts have long treated such orders as exceptions to the general rule
against interlocutory appeals during criminal proceedings. See Marin, 86 A.D.2d
at 42 (allowing appeal because a direct appeal post-conviction is an “avenue of
relief [that] is totally unavailable to [the third-party law firm], who is clearly
aggrieved by the [trial court’s] order”). Marin holds that when the Government
4 Neither of the other two cases the Government cites, Gov’t Br. 21, is on point.
In Matter of ADA Merri Bernstein, 67 N.Y.2d 852 (1986), the Court simply
deemed nonappealable an unspecified order (apparently a target’s effort to
quash a traditional search warrant) in a one-sentence opinion. And Matter of
Alphonso C., 38 N.Y.2d 923 (1976), did not involve subpoenas or search
warrants; rather, it involved lineups and handwriting exemplars. There, the
orders were directed at appellants—potential criminal defendants—whom the
Government had probable cause to believe were engaging in criminal activity,
rather than a third party that was not itself suspected of criminal conduct. See
Dist. Attorney of Kings Cty. v. Angelo G., 48 A.D.2d 576, 577-78, 582 (2d
Dep’t 1975), remanded sub nom. Matter of Alphonso C., 38 N.Y.2d at 924-25.
19
attempts to force a third party to produce documents for use in a criminal
investigation, the third party must be given the “opportunity to vindicate its
position before an appellate body.” Id. Here, the Government does not dispute
that if the trial court’s order is deemed nonappealable, Facebook will never have
that opportunity. Cf. Newsday, 3 N.Y.3d at 651 (deeming order nonappealable in
part because Newsday had other avenues of relief).
2. The Government concedes that “this Court has long held that a
nonparty to the criminal action may appeal from an order in connection with a
motion to quash a subpoena, even if that subpoena was issued in a criminal
matter.” Gov’t Br. 22. To get around that rule, the Government urges this Court to
treat the SCA warrants like traditional search warrants rather than the subpoenas
they more closely resemble. Gov’t Br. 25-27. The Government’s arguments fall
short.
Facebook’s opening brief explained how an SCA warrant operates like a
subpoena rather than a traditional search warrant:
• Like a subpoena, an SCA warrant need not be served in person.
• Like a subpoena, an SCA warrant is not immediately executed.
• Like a subpoena, no law enforcement presence is required for service or
execution of an SCA warrant.
20
• Like a subpoena, the recipient of an SCA warrant is commanded to
identify, collect, and produce information to the Government.
• Like a subpoena, an SCA warrant can be quashed through a motion by
the recipient.
See Facebook Opening Br. 20-22; see also In re Warrant to Search a Certain E-
Mail Account Controlled & Maintained by Microsoft Corp., 15 F. Supp. 3d 466,
471 (S.D.N.Y. 2014) (explaining that SCA warrants are a “hybrid: part search
warrant and part subpoena” and holding that while a traditional search warrant
could not apply outside the United States, an SCA warrant could—because an SCA
warrant operates like a subpoena).
Although the Government concedes that all of these critical similarities
between SCA warrants and subpoenas reflect “the realities of how an SCA-
compliant warrant is actually executed,” it focuses on the fact that 18 U.S.C.
§ 2703(g) “speaks in terms of ‘a search warrant.’” Gov’t Br. 29-30. This mode of
analysis is exactly what Abrams said courts should not do—focus on the label
attached to a proceeding rather than “look[ing] to the true nature of the proceeding
and to the relief sought.” Abrams, 62 N.Y.2d at 191.
The Government emphasizes the one way that an SCA warrant is similar to a
traditional search warrant: it is reviewed for probable cause by a magistrate.
Gov’t Br. 23. But for purposes of appealability, the many ways in which an SCA
21
warrant mirrors a subpoena vastly outnumber the one way in which it does not. As
this Court held in Abrams, the test for appealability turns on “the true nature of the
proceeding” and the “relief sought.” Abrams, 62 N.Y.2d at 191. Here, both the
nature of the proceeding and the relief sought (quashing a demand for documents)
lead to the conclusion that an SCA warrant should be treated as a subpoena for
appealability purposes. Indeed, the fact that Congress specifically authorized
motions to quash SCA warrants is proof positive that Congress viewed “the nature
of the proceeding” and the available “relief” as analogous to a subpoena rather than
a traditional search warrant.
The Government is wrong in claiming that Facebook “is seeking to have it
both ways,” Gov’t Br. 25-26, by insisting on a probable-cause requirement as well
as a right to move to quash. That is precisely the structure that Congress enacted.
It required the Government to establish probable cause (18 U.S.C. § 2703(a)) and
granted service providers the right to move to quash (18 U.S.C. § 2703(d)).
Likewise, the Government’s tortured “textual” argument is meritless. See
Gov’t Br. 27-28. The thrust of the Government’s argument appears to be that
because Section 2703 uses both the word “warrant” and the word “subpoena,” the
two words should be given different meanings. But this is a straw man; no one is
arguing to the contrary. When seeking information under Section 2703, the
Government may proceed in different ways, including through an SCA warrant or
22
a subpoena. That fact is irrelevant to the question presented here: whether, for
appealability purposes, an SCA warrant is more akin to a subpoena or a traditional
search warrant. As shown above, because it is far more similar to a subpoena, and
because the relief sought in this appeal is akin to quashing a subpoena, the denial
of Facebook’s motion to quash is appealable under Abrams.5
3. If Facebook is not allowed to appeal from the trial court’s denial of its
motion to quash the SCA warrants, it is a virtual certainty that the vast majority of
the warrants will be forever insulated from appellate review. The District Attorney
charged only 62 of the nearly 400 targeted Facebook users. This means that the
Government rummaged through the personal and private information of more than
300 people who were never charged and have no avenue to challenge the warrants.
Of the 62 who were charged, more than three-fourths have already pled guilty—
without even seeing the warrants themselves or the investigator’s affidavit. The
Government’s repeated assertion that any citizen aggrieved by the seizure of their
private information will have “ample opportunity” to challenge the search warrants
is hollow. Gov’t Br. 33.
5 The Government’s reliance on United States v. Bach, 310 F.3d 1063 (8th Cir.
2002), is misplaced. Gov’t Br. 30-31. Bach simply held that the Fourth
Amendment did not require law enforcement officials to be present when an
SCA warrant was executed. 310 F.3d at 1066-67. It did not involve questions
of appealability.
23
The Government’s suggestion, Gov’t Br. 33, that the hundreds of unindicted
New Yorkers victimized by the Government’s seizure should each retain their own
lawyer and sue the Government is unrealistic. The bottom line is that for the
hundreds of people whose private information was seized, rummaged through, and
remains in the District Attorney’s possession, this appeal is their day in court and
their only hope to vindicate their constitutional rights.
4. The Government errs in claiming, Gov’t Br. 34-35, that Facebook’s
challenge to the gag order is moot because that order has now been lifted. A case
is not moot when the Government makes a “voluntary cessation” of the challenged
conduct but maintains its right to engage in the conduct in the future. See Los
Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (“[A]s a general rule, ‘voluntary
cessation of allegedly illegal conduct does not deprive the tribunal of power to hear
and determine the case, i.e., does not make the case moot.’” (citation omitted)). A
case may become moot by the defendant’s voluntary conduct only if “subsequent
events made it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 189 (2000). The Government bears the “heavy burden
of persuading the court that the challenged conduct cannot reasonably be expected
to start up again.” Id. (brackets omitted).
24
The Government has made no such showing. To the contrary, it has never
disavowed the perpetual gag order it obtained here; it maintains that such an order
is lawful and that the Government has the right to obtain and enforce the exact
same order in future cases. Accordingly, under a straightforward application of the
“voluntary cessation” rule, the dispute over the gag order remains live.
Moreover, this Court retains the authority to resolve the challenge under the
well-settled exception to the mootness doctrine for cases involving “(1) a
likelihood of repetition, either between the parties or among other members of the
public; (2) a phenomenon typically evading review; and (3) a showing of important
questions not previously passed on, i.e., substantial and novel issues.” Matter of
Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-15 (1980). Each of these factors is
satisfied here. First, the First Amendment issues presented in this appeal will
inevitably reappear, as the number of local and federal law enforcement requests
directed at third-party service providers for electronic information has increased
substantially in recent years, and approximately 60 percent of such requests
include nondisclosure provisions. See Facebook, Global Government Requests
Report (Apr. 28, 2016), available at http://newsroom.fb.com/news/2016/04/global-
government-requests-report-5/ (data showing that requests to Facebook from law
enforcement increased 50 percent from 2013 to 2015, and that in 2015 Facebook
received 36,812 requests for 56,620 accounts). Second, the issues typically evade
25
review, as courts have recognized in analogous cases where prior restraints had
been lifted by the time the case was on appeal. See, e.g., Globe Newspaper Co. v.
Superior Court for Norfolk Cty., 457 U.S. 596, 603 (1982). Third, this appeal
presents critically important constitutional questions of first impression, including
whether the Government can impose an indefinite gag order barring Facebook
from telling its users what the Government has compelled it to do.
II. THE SCA WARRANTS ARE UNCONSTITUTIONAL.
A. The SCA Warrants Violate the Fourth Amendment.
The SCA warrants are the very kind of general warrant that the Fourth
Amendment prohibits. See United States v. Galpin, 720 F.3d 436, 445 (2d Cir.
2013). These sweeping, carbon-copy warrants demand virtually all records and
information concerning anything that nearly 400 people have ever done on
Facebook from the moment they created their accounts. The warrants do not
contain any meaningful boundaries, such as temporal limitations, individualization,
or a nexus between the crimes alleged and the searches and seizures. See United
States v. Rosa, 626 F.3d 56, 62 (2d Cir. 2010).
Remarkably, the Government has abandoned its defense of the warrants’
constitutionality. Rather than defend its warrants as permissible under the Fourth
Amendment, the Government now takes the position that because it continues to
conceal the investigator’s affidavit supporting the warrants—and has not provided
26
it to Facebook or even to this Court—“there is nothing in the record to permit this
Court to make the determination sought by Facebook.” Gov’t Br. 47.
This is gamesmanship of the worst sort. In the Government’s view, this
Court cannot adjudicate whether the Government violated the constitutional rights
of hundreds of New York citizens without examining the investigator’s affidavit
that supposedly establishes probable cause—but the Government refuses to
provide this Court with the affidavit, thus insulating its actions from judicial
scrutiny. The Government has even refused to provide the affidavit to defendants,
believing (incorrectly) that because it has chosen not to use the evidence, it has no
obligation to produce the affidavit. See, e.g., People v. Chahine, 150 Misc. 2d 242,
243 (Crim. Ct. N.Y. City 1991) (“[S]earch warrants and search warrant
applications are discoverable under CPL § 240.20(1)(h).”).
The Government envisions a Star Chamber proceeding where the
Government can seize private information based on secret evidence that the
Government withholds from the reviewing court. Even more appalling is the fact
that the Government successfully moved to unseal the affidavit in the trial court
precisely so that the affidavit could be made public. See Part III infra.
Notably, the position the Government now takes—that this Court is
powerless to adjudicate the warrants’ constitutionality—was not the position it
took in the First Department. There, it at least attempted to defend the warrants as
27
sufficiently particularized. Br. for Resp’t at 24, Index No. 30207/13, In re 381
Search Warrants (1st Dep’t Oct. 2014). The Government has abandoned that
position here. It offers no defense of its warrants. In a 64-page brief, the
Government says not one word in explanation of how its warrants could possibly
comply with the Fourth Amendment.
The Government’s claim that a warrant’s probable cause can be determined
only by examining the underlying affidavit is wrong in any event. The Supreme
Court has held that “[t]he fact that the application adequately described ‘the things
to be seized’ does not save the warrant from its facial invalidity. The Fourth
Amendment by its terms requires particularity in the warrant, not in the supporting
documents.” Groh v. Ramirez, 540 U.S. 551, 557 (2004). Moreover, any details
contained in the investigator’s affidavit cannot salvage the defective warrants
because the affidavit is neither attached to the warrants nor incorporated by
reference. See id. at 558.
What has been made public about the affidavit further confirms the SCA
warrants’ overbreadth. The affidavit is 93 pages, and it was submitted to establish
probable cause for 381 warrants. This means that the affidavit includes less than
one-quarter of a page of content concerning each warrant, even assuming that the
affidavit was particularized as to each targeted account and contained no
28
background information. One-quarter of a page is plainly insufficient to establish
probable cause for such a massive search and seizure.
The SCA warrants violate the Fourth Amendment for another reason: they
do not include any provisions requiring the Government to return the vast amounts
of information seized that have nothing to do with the crimes investigated. The
can be no dispute that this infirmity is evident from the face of the warrants and
does not require examination of the supporting affidavit. The warrants
unconstitutionally authorize the Government to permanently retain all of the
information collected, even though only a minute fraction of that data could
possibly be relevant to its investigation. Facebook presented this argument at
length in its opening brief, see Facebook Opening Br. 45-46, yet the Government
simply ignores it. The Government has good reason for its silence: it is well
settled that a warrant must include provisions prohibiting the Government from
“collecting and keeping indefinitely information to which it has no right.” In the
Matter of the Search of Info. Associated with the Facebook Account Identified by
the Username Aaron.Alexis, 21 F. Supp. 3d 1, 9-10 (D.D.C. 2013). The
Government does not dispute that the bulk warrants contain no such provision. See
A.30.
29
B. The Gag Provisions Violate the Stored Communications Act and
the First Amendment.
By barring Facebook—in perpetuity—from ever disclosing the warrants or
publicly speaking about them, the warrants’ gag provisions violate both the SCA
and the First Amendment. The Government argues that gag provisions can be
necessary to preserve the secrecy of an investigation—and that the gag provisions
in this case were not perpetual because the court “implicitly recognized” that the
Government would return to notify the court when they were no longer needed.
These arguments are irrelevant, implausible, and manifestly wrong.
1. The gag provisions violate the SCA because they impose a perpetual
restraint on speech, whereas the SCA authorizes courts to order nondisclosure only
“for such period as the court deems appropriate.” 18 U.S.C. § 2705(b) (emphasis
added). Because a “period” is a unit of time with a beginning and an end, a
perpetual gag order violates the statute.
The Government’s main argument is that “neither the People nor the court
ever intended for there to be a permanent ban.” Gov’t Br. 50. According to the
Government, it intended to return to the court and seek modification of the gag
order as the investigation progressed. Id. But the gag orders themselves contain
no such limitation or understanding. To the contrary, they “order[ ] Facebook not
to notify or otherwise disclose the existence or execution of this warrant/order to
any associated user/account holder.” A.43-44. Indeed, the trial court emphasized
30
that “[t]he Nondisclosure Order remains in effect until the court orders otherwise.”
A.37. The trial court undeniably entered an indefinite, perpetual restriction.
The Government’s argument, Gov’t Br. 52, that the court “implicitly
recognized” that the gag order would one day be lifted when the need for
investigative secrecy had passed cannot be taken seriously. The substance of a
court order does not change because a judge has looked into the prosecutor’s heart
and divined an intent to return to court someday and seek the order’s modification.
If this were the standard, a court could issue blatantly unlawful restrictions on
speech—and justify them on the theory that there was an implicit understanding
that they would later be modified. Here, whether the gag order complied with the
SCA must be determined by the text of the order as it existed, not based on a
purported “implicit recognition” as to how it might later be modified.
For the same reasons, the Government falls short in its effort to distinguish
In the Matter of Search Warrant for: [Redacted]@hotmail.com, 74 F. Supp. 3d
1184 (N.D. Cal. 2014). There, the court rejected an indefinite gag order based on
the plain language of Section 2705(b), pointedly noting that a “common sense view
of ‘period’ in the statute suggests some limit less than infinity.” Id. at 1185. In the
Government’s view, the difference between Redacted and this case is that in
Redacted, the court had a “concern” that the Government might not genuinely
intend to return to court and seek modification, whereas in this case, the trial court
31
“implicitly recognized” that the Government’s intent was genuine. Gov’t Br. 52.
But the law does not change depending on the “intent” of the prosecutors—the
plain text of Section 2705(b) does not authorize perpetual gag orders regardless of
what the Government’s unspoken “intent” might be.
The Government’s half-hearted attempt at statutory interpretation is not
persuasive. The Government contends that because “the statute did not require that
the court set a specific date,” a perpetual gag order was permissible. Gov’t Br. 51.
But this utterly ignores the limitation Congress did impose—that a gag order be
limited to the “period” the court deems appropriate. Nowhere does the
Government engage this critical statutory language. In fact, the Government’s
interpretation would render the phrase “for such period” a nullity. The
Government notes that Congress set specific time limits in other portions of the
statute. Id. at 51-52. But the fact that a different part of the statute contains a 90-
day notice provision, for example, does not mean that Congress authorized gag
orders of indefinite duration under Section 2705(b). Rather, all it means is that
Congress did not specify the precise length of the “period”—that is left to the
court—but it must be a “period” with a discernible end date, all the same.
2. The gag provisions also violate the First Amendment because they are
an indefinite, content-based restriction on Facebook’s speech concerning a matter
of public interest and importance. See In re Sealing and Non-Disclosure of
32
Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876, 886 (S.D. Tex. 2008) (“An
indefinite non-disclosure order is tantamount to a permanent injunction of prior
restraint.”).
The Government contends that Facebook waived its First Amendment claim
by supposedly failing to present the argument in the trial court. Gov’t Br. 49. But
the Government has never before claimed waiver: it did not argue waiver when
Facebook raised the argument in the First Department, and it did not argue waiver
when Facebook raised the argument in its motion for leave to appeal to this Court.
“[W]hen [the government] has neglected to argue on appeal that a defendant has
failed to preserve a given argument . . . courts have consistently held that the
government has ‘waived waiver.’” United States v. Quiroz, 22 F.3d 489, 491 (2d
Cir. 1994). The First Amendment issue was fully briefed and argued below by
both sides, so it is too late in the day for the Government to assert “waiver” for the
first time in this Court. And even where an argument was not presented to the
Appellate Division, “[t]he appellant may urge a question of law appearing on the
face of the record although not argued below.” 4 N.Y. Jur. 2d Appellate Review
§ 613. For that reason too, Facebook’s First Amendment claim is properly
presented for this Court’s review.
The Government emphasizes its baseless “waiver” claim because it has no
defense on the merits. The Government notes that “the Supreme Court has upheld
33
regulations permitting judges to prevent disclosure of information during judicial
proceedings,” and that nondisclosure orders can be necessary to protect the secrecy
of ongoing investigations. Gov’t Br. 53-54. But those arguments again attack a
straw man: no one is claiming that nondisclosure orders are per se
unconstitutional; rather, the question here is whether an indefinite and open-ended
nondisclosure order violates the First Amendment. Moreover, although the
Government concedes that there can be no need for secrecy once an investigation
has concluded, Gov’t Br. 54, it literally has no answer as to why the gag order in
this case did not contain this simple limitation. On its face, the gag order remains
in force even after the indictments have become public and the investigation has
ended.
There can be no serious dispute that an indefinite, perpetual gag provision
violates the First Amendment. As the court held in In re Sealing, “setting a fixed
expiration date on sealing and non-disclosure of electronic surveillance orders is
not merely better practice, but required by law: in particular, the First Amendment
prohibition against prior restraint of speech and the common law right of public
access to judicial records.” 562 F. Supp. 2d at 878 (footnote omitted). The
Government attempts to distinguish In re Sealing on the same basis it attempts to
distinguish Redacted—that in those cases, the Government could not trust the
prosecutors to return to court to modify the gag orders as the investigation
34
progressed, whereas here, the prosecutors had a pure heart and the trial court
“implicitly recognized” that they could be trusted with a perpetual gag order that
would otherwise have been unconstitutional. See Gov’t Br. 56. It should go
without saying that this is nonsense. The constitutionality of a gag order does not
turn on whether the individual prosecutors before the court can be trusted to return
to court and update the judge. A perpetual gag order violates the First
Amendment—period. That is the beginning and the end of the analysis.
III. THE GOVERNMENT HAS IMPROPERLY WITHHELD THE
INVESTIGATOR’S AFFIDAVIT.
The Government continues to conceal the investigator’s affidavit that the
trial court relied upon both in issuing the search warrants and in denying
Facebook’s motion to quash the warrants. As the Government’s brief makes clear,
its purpose is evident: to prevent this Court from determining whether the SCA
warrants violate the Fourth Amendment. See Gov’t Br. 47 (arguing that because it
has refused to produce the investigator’s affidavit, “there is nothing in the record to
permit this Court to make the determination sought by Facebook”).
The Court should direct the Government to produce the affidavit. Facebook
and the public have a right of access to the affidavit because it is a “judicial
document” that was considered in adjudicating substantive legal rights. See In re
Sealing, 562 F. Supp. 2d at 887-89 (citing cases); Danco Labs., Ltd. v. Chem.
Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6-8 (1st Dep’t 2000). The
35
Government has not met the heavy burden required to deny public access to the
affidavit. The affidavit is no longer under seal; the Government’s investigation of
the indicted individuals has concluded; the Government’s indictments and
prosecutions have been public since January 2014; and more than three-fourths of
the individuals charged have pled guilty.
The Government begins by contending, inexplicably, that “[b]efore the trial
court, Facebook never argued, as it does now, that under the New York and United
States Constitutions and under common law, the public has a right to access
judicial records and proceedings.” Gov’t Br. 57 (internal quotation marks and
brackets omitted). Facebook presented this exact argument to the trial court. In
support of its motion to compel disclosure of the affidavit, Facebook argued that
“Facebook and the public have a right to access the unsealed investigator’s
affidavit under common law and under the United States and New York
Constitutions. The investigator’s affidavit is, without a doubt, a ‘judicial
document’ adjudicating ‘substantive legal rights’ and warranting public access.”
A.364 (citations omitted); see also A.365, 367-70. That the Government would
choose to make a demonstrably false “waiver” argument its lead argument on
appeal underscores the weakness of its position. Indeed, the Government elected
not to present this frivolous defense to the First Department.
36
The Government argues that the common-law right of access does not apply
to the investigator’s affidavit because it was “not a public document.” Gov’t Br.
60. By this, the Government means that the affidavit is not physically lodged in
the court file, even though the Government submitted it to the trial court and the
court relied upon it in approving the warrants and denying Facebook’s motion to
quash. But the common-law right of access is not so narrowly limited: it attaches
to all documents that are “relevant to the performance of the judicial function and
useful in the judicial process.” United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.
1995). Documents that a judge expressly relies upon in making a decision are at
the heart of this definition: a document that provides the very basis for a judicial
decision is obviously “relevant” to the “judicial function.” Id. As the Southern
District of New York has held, because “[a]ffidavits in support of seizure or search
warrants are central to a court’s probable cause determination,” they “clearly fall
within the definition of ‘judicial documents.’” United States v. All Funds on
Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577, 583 (S.D.N.Y. 2009).6
6 The Government errs in relying on Matter of Newsday, Inc. v. Sise, 71 N.Y.2d
146 (1987). That case involved records “containing the names and addresses of
jurors obtained from . . . questionnaires” that were exempt from disclosure
under Judiciary Law § 509(a). Sise, 71 N.Y.2d at 149. Those questionnaires
were not “judicial records” subject to a right of access. Id. at 153 n.4.
37
Many courts have rejected the position the Government advances here, and
held that the common-law right of access extends to search warrant applications
once the warrant has been executed. See United States v. Custer Battlefield
Museum, 658 F.3d 1188, 1192-94 (9th Cir. 2011) (collecting cases); In re Sealing,
562 F. Supp. 2d at 892 (same). The Government does not cite a single case to the
contrary. Instead, the Government cites several cases involving the First
Amendment right of access (rather than the common-law right). Gov’t Br. 58. But
all those cases say is that the First Amendment right of access does not extend to
search warrant documents when the investigation is ongoing. Here, of course, the
Government has publicly acknowledged that its investigation is over.
The Government notes that the right of access is not absolute, in that “courts
have supervisory power over their own records, which includes the right to seal
documents when necessary.” Gov’t Br. 60. But that observation is entirely beside
the point, because the trial court in this case unsealed the investigator’s affidavit.
Thus, while the Government emphasizes the “discretion” a trial court has in
deciding whether to keep a document under seal, Gov’t Br. 61, in this case the trial
court has made an express determination—at the Government’s behest—that there
is no longer any need to keep the investigator’s affidavit under seal: disclosure of
the affidavit was “in the public interest and an appropriate exercise of [the trial
court’s] discretion.” A.212 (order unsealing the affidavit). The Government’s
38
claim that the unsealing was “for the limited purpose of disclosing [the affidavit] at
the appropriate time to the criminal defendants who had been indicted,” Gov’t Br.
59, is belied by the plain language of the unsealing orders themselves, which
contain no such limitations. See A.154, 157. Whatever the trial court’s purpose in
unsealing may have been, it placed no restrictions on who could access the
affidavit or the circumstances under which it could be disclosed.
The Government also argues that federal practice differs from state practice,
in that federal courts typically require that search warrants and supporting papers
be filed with the clerk. Gov’t Br. 62-63. But the right of public access should not
depend on whether the trial court happened to maintain a copy of the document.
That would open the door to precisely the type of gamesmanship and manipulation
the Government is engaged in here. It would also enable a court to shroud its
actions in secrecy simply by not retaining copies of the documents it relies upon in
making decisions.
Noting that the investigation was ongoing at the time Facebook first
requested the affidavit, the Government suggests that Facebook go back to square
one and file a request under the Freedom of Information Law. Gov’t Br. 63. The
Government is playing a shell game. Nowhere in its brief does the Government
explain why it continues to conceal the investigator’s affidavit. That is because the
only possible reason for continued concealment at this point is to prevent this Court
39
from seeing the affidavit’s gross deficiency—and then concluding that the
Government violated the Fourth Amendment rights of hundreds of New York
citizens.
The Government does not have the authority to decide when the public and
this Court may have access to an unsealed judicial document that is highly relevant
to a pending appeal. See In re Search Warrants Issued on April 26, 2004, 353 F.
Supp. 2d 584, 588 (D. Md. 2004) (The “decision [of access] must ultimately rest
with the court and not in the discretion of the government.”). This Court should
reverse the ruling below and direct the Government to disclose the affidavit.
CONCLUSION
Where, as here, the Government exceeds its statutory authority, runs
roughshod over basic constitutional guarantees, and then denies the power of the
courts even to adjudicate the dispute, the role of the judicial branch is clear. This
Court should reverse the decision below.
Dated: New York, New York
June 17, 2016
Of Counsel:
Orin Snyder
Alexander H. Southwell
Thomas H. Dupree, Jr.
(admitted pro hac vice)
Gabriel K. Gillett
Respectfully submitted,
By: 0~~
GIBSON, DUNN & CRUTCHER LLP
Attorneys for Appellant
40
200 Park A venue
New York, New York 10166
Tel: (212) 351-2656
Fax: (212) 351-4035