Court of Appeals
STATE OF NEW YORK
MATTER OF 381 SEARCH WARRANTS DIRECTED TO FACEBOOK, INC.
Appellant,
-against-
NEW YORK COUNTY DISTRICT ATTORNEY’S OFFICE
Respondent..
BRIEF FOR AMICUS CURIAE
DISTRICT ATTORNEYS ASSOCIATION
OF THE STATE OF NEW YORK
THOMAS P. ZUGIBE
Rockland County District Attorney
President, District Attorneys
Association of the State of New York
c/o Richmond County District Attorney
130 Stuyvesant Place
Staten Island, New York 10301
KELLY WOLFORD
Assistant District Attorney/Monroe County
MORRIE I. KLEINBART
Assistant District Attorney/Richmond County
Of Counsel
January 2017
APL-2015-00318
TABLE OF CONTENTS
PRELIMINARY STATEMENT ................................................................................ 1
STATEMENT OF AMICUS CURIAE..................................................................... 1
THE RELEVANT FACTUAL BACKGROUND .................................................. 2
POINT I
THE ORDER APPEALED FROM IS NOT
APPEALABLE AND THE APPEAL TO THE
APPELLATE DIVISION WAS CORRECTLY
DISMISSED ........................................................................................... 5
A. Because Of The Lack Of Authorization By CPL
Article 450, The Order At Issue Here Is Not Appealable ............... 5
B. The Appealability Of An Order Denying Quashal Of A
Subpoena Directed At A Non-Party Is Irrelevant To The
Question Presented Here .................................................................. 7
C. The State Constitution guarantees a non-party’s right to
appeal from the denial of a motion to quash a subpoena ..................... 10
POINT II
ABSENT JUDICIAL OR LEGISLATIVE
AUTHORIZATION, THE CUSTODIAN OF A
RECORD HAS NEITHER STANDING TO SEEK
QUASHAL OF A SEARCH WARRANT NOR THE
ABILITY TO STAND IN THE SHOES OF THE
PERSON WHOSE RECORD IS PURPOTEDLY
SOUGHT IN VIOLATION OF THE FOURTH
AMENDMENT ..................................................................................... 12
CONCLUSION ............................................................................................................ 21
ii | P a g e
TABLE OF AUTHORITIES
CASES
Adeline v Stinson, 206 F.3d 249 (2d Cir. 2000) ......................................................... 20
Cayuga Indian Nation v. Gould, 14 N.Y.3d 614 (2010) ........................................... 5, 7
Donaldson v. United States, 400 U.S. 517 (1971) ..................................................... 17
In re Coddington's Will, 307 N.Y. 181 (1954) ........................................................... 15
In re New York County, 98 N.Y.2d 525 (2002) ........................................................ 13
Newsday v. Morgenthau, 3 N.Y.3d 651 (2004) ......................................................... 5
Matter of B.T. Prods. v. Barr, 54 A.D.2d 315, 319-20, (1976),
aff’d 44 N.Y.2d 226 (1978) ..................................................................................... 6, 9
Matter of Cunningham v. Nadjari, 39 N.Y.2d 314 (1976) ....................................... 6, 7, 8
Matter of Nigrone v. Murtagh, 36 N.Y.2d 421(1975) ............................................... 6
Matter of State of New York v. King, 36 N.Y.2d 59 (1975) .................................... 6
People v. Coppa, 45 N.Y.2d 244 (1978) ..................................................................... 6
People v. DeJesus, 54 N.Y.2d 447 (1981) .................................................................. 5
People v. Doe, 247 A.D. 324, aff’d 272 N.Y. 473 (1936) ......................................... 11
People v. Farrell, 85 N.Y.2d 60, 66 (1995) ................................................................. 11
People v. Marin, 86 A.D.2d 40 (2nd Dept. 1982) ..................................................... 8
People v. Pollenz, 67 N.Y.2d 264, 270 (1986) ........................................................... 11
People v. Purley, 297 A.D.2d 499 (1st Dept 2002) ................................................... 8
People v. Santos, 64 N.Y.2d 702 (1984) ..................................................................... 7
iii | P a g e
Santangello v. People, 38 N.Y.2d 536 (1976) ............................................................. 9
SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735, 743 (1984) ........................................... 17
United States v. Miller, 425 U.S. 435 (1976) .............................................................. 16
STATUTES
12 USC § 3401 (Right to Financial Privacy Act) ....................................................... 17
15 USC §§ 6801 to 6809 (Gramm-Leach-Bliley Act) ................................................ 18
18 USC §2703 (Stored Communication Act) ............................................................. 15, 16
CPLR 4504 ..................................................................................................................... 14
N.Y.Ct.Rules, § 202.12 .................................................................................................. 16
Penal Law §265.25 ......................................................................................................... 14
NY Const Art VI, § 4(k) ............................................................................................... 10, 11
CPL §1.20(18) ................................................................................................................ 6
CPL Article 450 ............................................................................................................. 5,6,11
CPL §10.10(7) ................................................................................................................ 6
OTHER AUTHORITY
Electronic Privacy Information Center, The Right to Financial Privacy Act
(available at https://epic.org/privacy/rfpa/
[last visited November 17, 2016]) ................................................................................ 17
Validity, Construction, and Application of Information Privacy
Provisions of Gramm-Leach-Bliley Act, 15 USC §§ 6801 to 6809,
and Regulations Promulgated Thereunder, 5 A.L.R. Fed. 2d 497 .......................... 18
COURT OF APPEALS
STATE OF NEW YORK
MATTER OF 381 SEARCH WARRANTS
DIRECTED TO FACEBOOK, INC.
Appellant,
-against-
NEW YORK COUNTY DISTRICT
ATTORNEY’S OFFICE
Respondent.
BRIEF FOR AMICUS CURIAE
DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK
PRELIMINARY STATEMENT
The District Attorneys Association of the State of New York (“DAASNY”)
submits this brief as amicus curiae in the above captioned appeal. The underlying
proceeding involves an attempt by Facebook, Inc., an online social networking
service, to raise constitutional challenges to execution of search warrants which
sought customer account information obtained in connection with a large-scale
investigation into the fraudulent filing of Social Security disability claims prior to
enforcement.
STATEMENT OF AMICUS CURIAE
The District Attorneys Association of the State of New York (DAASNY) is a
state-wide organization composed of elected District Attorneys from throughout New
York State, the Special Narcotics Prosecutor of the City of New York, the Special
2 | P a g e
Prosecutor/Inspector General at New York State Justice Center for the Protection of
People with Special Needs, and their nearly 2900 assistants. County Law Section 700
charges the members of the Association with the responsibility for the investigation
and prosecution of crimes committed in their respective jurisdictions, and a significant
part of this investigative function involves the preparation of such documents as
search warrants and the litigation of all matters concerning the legality of the warrants
and their execution. Facebook’s effort to establish a right to pre-execution challenge
of such warrants is of enormous concern to DAASNY because of the delay such
premature litigation would cause to ongoing and future law enforcement
investigations, a delay that would only be exacerbated by a conclusion that appeals
may be taken from the denial of such unauthorized applications.
THE RELEVANT FACTUAL BACKGROUND
In connection with a large-scale investigation into the fraudulent filing of Social
Security disability claims, including claims from a group of retired police officers and
firefighters suspected of having feigned mental illnesses caused by the events of
September 11, 2001, the New York County District Attorney’s Office obtained search
warrants directing online social network provider Facebook to retrieve and produce
every posting and action that 381 users of the service had taken. The application for
the warrants was supported by the 93-page affidavit of Senior Investigator Donato
Siciliano.
3 | P a g e
According to the warrants, there was "reasonable cause to believe" that the
property to be searched and seized constituted evidence of offenses that included
grand larceny in the second degree, grand larceny in the third degree, filing of a false
instrument in the first degree, and conspiracy. Each of the warrants contained a
nondisclosure provision, which prevented Facebook from disclosing the warrants to
the users. Upon being served with the warrants, Facebook contacted the District
Attorney's Office and requested that it voluntarily withdraw them, or, alternatively,
consent to vacate the nondisclosure provisions. The District Attorney's Office
declined.
Before Supreme Court, Facebook moved to quash the warrants, challenging
their broad scope and nondisclosure requirements. The District Attorney's Office
defended the warrants as a legitimate governmental action to aid an expansive
investigation. Further, the District Attorney's Office justified the confidentiality
requirements as necessary to prevent potential defendants from fleeing if they learned
of the investigation, destroying evidence outside Facebook's control, or tampering
with potential witnesses. The District Attorney's Office also questioned Facebook's
legal standing to raise constitutional concerns, contending that Facebook is simply an
online repository of data and not a target of the criminal investigation.
Supreme Court denied Facebook's motion to quash and upheld the warrants as
issued, requiring Facebook to comply. According to Supreme Court, Facebook could
not assert the Fourth Amendment rights of its users. Facebook had to wait until the
4 | P a g e
warrants were executed and the searches conducted; only then could the legality of the
searches be determined. Facebook complied with the warrants, and the District
Attorney's Office indicted some of the targeted people.
Facebook took an appeal from the denial of its quashal motion. The District
Attorney moved to dismiss the appeal as seeking to take an appeal from a non-
appealable order. On September 25, 2014, that motion was denied without prejudice
to renewing the arguments for dismissal in respondent’s brief. Following briefing and
argument, the Appellate Division dismissed the appeal. That court observed that
there was no authority permitting the target of a search warrant, a defendant, or
anyone else to challenge a purportedly defective warrant before its execution. The
court reminded that issuance of a warrant followed careful consideration by a neutral
and detached magistrate charged with considering whether or not the warrant
application satisfied the requirements of the Fourth Amendment. It further pointed
out that after execution of a search warrant, the target could challenge its issuance
consistent with the rules laid out in the Criminal Procedure Law.
The Appellate Division also recognized that Facebook’s effort to treat a search
warrant as if it were a grand jury subpoena, which a third party may challenge before
making the demanded disclosure, served to highlight the weakness in its argument.
While Facebook insisted on the probable cause standard governing search warrants, it
wished to retain the adversary process governing challenges to subpoenas. This, the
5 | P a g e
court observed, was an effort to grant its customers rights beyond those guaranteed in
the Constitution.
This Court granted leave to appeal.
POINT I
THE ORDER APPEALED FROM IS NOT
APPEALABLE AND THE APPEAL TO THE
APPELLATE DIVISION WAS CORRECTLY
DISMISSED
As a general matter, whether a particular order or judgment entered in a
criminal proceeding is appealable is determined by examination of Article 450 of the
CPL. People v. DeJesus, 54 N.Y.2d 447 (1981). Hence, dispositive of the
appealability question here is whether matters attendant to a search warrant are civil
or criminal in nature. It has long been the rule that the filing of a search warrant
application involves a criminal investigation and thus, matters attendant to such
applications are criminal proceedings. Newsday v. Morgenthau, 3 N.Y.3d 651 (2004);
Cayuga Indian Nation v. Gould, 14 N.Y.3d 614 (2010). That being the case, the CPL
governs the appealability of Facebook’s effort to “quash” the search warrant. Since
the order is not appealable under the CPL, the appeal was properly dismissed.
A. Because Of The Lack Of Authorization By CPL Article 450, The Order At Issue Here Is
Not Appealable
It is CPL Article 450 that describes those orders or judgments entered in a
criminal court from which an appeal may be taken. Those appealable as of right by a
defendant include judgments of conviction, sentences, orders setting aside sentences
6 | P a g e
as illegal on motion of the People, and orders denying motions for the testing of
DNA evidence. Those appealable as of right by the People include orders dismissing
accusatory instruments, reducing counts of an indictment, setting aside verdicts,
vacating judgments, setting aside sentences, and suppressing evidence. Those a
defendant may appeal by permission include orders denying CPL Section 440.10
vacatur, those denying applications to set aside sentence, and sentences not otherwise
appealable as of right. Nowhere mentioned is an order denying a motion to quash a
search warrant.
CPL Article 450 codifies the rule that no interlocutory appeals are permitted in
New York in criminal proceedings, with certain specifically enumerated exceptions
not applicable here. And, while it is true that CPLR Article 78 authorizes
commencement of a civil proceeding to obtain collateral review of a determination
made in a pending criminal matter (CPL 10.10, subd. 7; see, e. g., Matter of
Cunningham v. Nadjari, 39 N.Y.2d 314 (1976); Matter of State of New York v. King,
36 N.Y.2d 59 (1975); Matter of Nigrone v. Murtagh, 36 N.Y.2d 421(1975), that
authority is limited and an intermediate appellate court may look beyond the face of
the order, and dismiss, to insure that the restrictions on interlocutory appeals in
criminal cases are not breached. People v. Coppa, 45 N.Y.2d 244, 249 (1978).
Here, once the District Attorney applied for a search warrant, a criminal
proceeding had commenced. CPL 1.20(18); Matter of B.T. Prods. v. Barr, 54 A.D.2d
315, 319-20, (1976), aff’d 44 N.Y.2d 226 (1978);
7 | P a g e
Cayuga Indian Nation of New York v. Gould, 14 N.Y3d at 634.1 Once that
proceeding had commenced, no appeal could be taken from any order issued during
the course of such proceeding. People v. Santos, 64 N.Y.2d 702 (1984).
B. The Appealability Of An Order Denying Quashal Of A Subpoena Directed At A Non-
Party Is Irrelevant To The Question Presented Here
It is true that there is one type of order entered in connection with a criminal
proceeding that would appear to breach this prohibition. That is the circumstance in
which a non-party has been subject to a subpoena and unsuccessfully moves to quash
it. Under those circumstances, the Court of Appeals “has allowed the direct
appealability of orders in such proceedings. It was reasoned that they were final
orders in special proceedings on the civil side of a court vested with civil jurisdiction.
. . . Since the jurisdiction of an Extraordinary Term is coextensive with that of an
ordinary term of Supreme Court possessing both criminal and civil jurisdiction,” it
applied that rule to a motion to quash a subpoena directing appearance before a grand
jury. Matter of Cunningham v. Nadjari, 39 N.Y.2d at 317. Moreover, even while
permitting appeals from orders denying motions to quash subpoenas seeking
testimony before a grand jury, the Court of Appeals acknowledged the peculiar
analytical basis for allowing such appeals and further acknowledged that “despite
1 It is true that the Cayuga Indian Nation court suggested that despite commencement of a criminal
proceeding, the target of a search warrant could still seek civil declaratory judgment relief to
challenge that warrant. That is of small comfort to Facebook here because this Court only
permitted a declaratory judgment action when the target of a possible criminal action had not been
identified, when the issue to be raised involved a pure question of law--such as a query concerning
the scope and interpretation of a statute or a challenge to its constitutional validity--and the facts
relevant to that issue were undisputed. None of these were the case here.
8 | P a g e
respondent's persuasive practical arguments addressed to the dilatory purpose that the
rule [allowing non-party appeals from denials of quashal motions] serves those
reluctant to testify in legitimate criminal investigations,” the court stated that it was
“not now ready to overrule precedents resting upon a history of 40 years.” Matter of
Cunningham v. Nadjari, 39 N.Y.2d at 317.
Cunningham, of course, explains why a non-party has the right to appeal from
denial of quashal outside the confines of CPL Article 450, which nowhere reflects the
right of a non-party to take an appeal in a criminal proceeding. First, as a
jurisdictional matter, the motion by a third party to quash a subpoena issued in
connection with an investigation in which that party is not a target is treated as the
commencement of a special proceeding on the civil side of Supreme Court. Such a
rule is required because the aggrieved party, the third party custodian of the records,
has no other avenue of redress. See People v. Purley, 297 A.D.2d 499 (1st Dept 2002)
(authorizing appeal by non-party Department of Corrections from order directing it
to implement certain measures concerning medical care of incarcerated defendant
because as a nonparty it would otherwise be precluded from vindicating its position
before an appellate body); People v. Marin, 86 A.D.2d 40 (2nd Dept. 1982) (same in
context of quashal of subpoena to non-party). And, as the Court of Appeals has
explained the cases have held that in the criminal context, the denial of an application
to quash a subpoena to a non-party is final and appealable order because of its very
nature. A motion to quash is limited in scope, challenging only the validity of the
9 | P a g e
subpoena or the jurisdiction of the issuing authority and is made prior to the return
date, thereby requiring such timeliness that substantial delay in the proceedings is
unlikely. Moreover, where granted, it results in completely voiding the process, thus
saving the needless expenditure of litigation effort. By way of contrast, the
application to quash the search warrant made while the investigation is proceeding
raises neither jurisdiction nor process objections, possesses immense potential for
delaying any investigation, and cannot in any way finally dispose of the criminal
investigation. Santangello v. People, 38 N.Y.2d 536 (1976). And, significantly,
litigation over such an application would not void the investigation from proceeding;
instead, it would likely cause extensive delay in those proceedings.
Moreover, the propriety of a search warrant can always be litigated by the party
to the criminal action, should it get that far, or by civil action claiming violation of the
right to be free of unreasonable searches and seizures. It is, of course, the availability
of a remedy to the party to the criminal action that limits a target’s ability to challenge
the validity of a search warrant before its execution.
For example, in B. T. Prods., Inc. v Barr, 44 N.Y.2d at 233, this Court observed
that, for the most part, Article 78 in the nature of prohibition would not be available
to challenge the validity of a search warrant. It found significant that there will exist an
adequate alternative remedy to an Article 78 proceeding. “A search warrant is most
often used to obtain evidence in the course of a criminal investigation of a particular
crime, an investigation which will soon eventuate in a criminal proceeding. In such
10 | P a g e
cases, the validity of the search warrant will of course be subject to challenge by
means of a motion to suppress, the denial of which is appealable in the context of an
appeal from the resultant conviction.”
C. The State Constitution guarantees a non-party’s right to appeal from the denial of a motion
to quash a subpoena
Even beyond the unique nature of a non-party’s motion to quash and the
concomitant right to challenge denial of such motion on appeal, it would appear that
the State Constitution guarantees the non-party’s right to appeal from what is viewed
as a final order denying quashal of a subpoena. By contrast, the appealability of an
order denying quashal of a search warrant, an order entered in a criminal proceeding,
is not similarly guaranteed. Hence, absent its designation in CPL Article 450, it simply
is not an appealable order.
The State Constitution provides:
The appellate divisions of the supreme court shall have all
the jurisdiction possessed by them on the effective date of
this article and such additional jurisdiction as may be
prescribed by law, provided, however, that the right to
appeal to the appellate divisions from a judgment or order
which does not finally determine an action or special
proceeding may be limited or conditioned by law.
NY Const Art VI, § 4(k).
This provision has been construed to mean that, “[a]s of its effective date, the
provision permits the Legislature to expand the jurisdiction of the Appellate Division
but not contract it, except with regard to appeals from nonfinal orders." People v.
11 | P a g e
Pollenz, 67 N.Y.2d 264, 270 (1986). Thus, the New York Constitution, article VI, § 4
(k) precludes the Legislature from limiting appeals from final orders where "as of
right" appeals existed as of September 1, 1962. See, e.g., People v. Pollenz, 67 N.Y.2d
264, supra; People v. Farrell, 85 N.Y.2d 60, 66 (1995). In other words, where an
appeal as of right from a particular final judgment or order existed before that date,
that appeal cannot be denied to a litigant.
As far back as 1936, this Court has held that an order denying quashal of a
subpoena is a final order. And, it has recognized that such orders are appealable.
People v. Doe, 247 A.D. 324, aff’d 272 N.Y. 473 (1936). Because the appealability of
these orders as of right was settled law in 1936, the constitutional provision cited
above suggests that that rule cannot be altered and thus, that there is a State
Constitutional right to take an appeal from the denial of quashal of a third party
subpoena. By contrast, not only is an order denying quashal of a search warrant not a
final order because it does not dispose of the criminal investigation of which it is a
part, but there was and is no authority, legislative or otherwise, permitting appeals
from such orders. In other words, these orders were not appealable as of right as of
September 1, 1962. And, as demonstrated above, this is an order entered in a criminal
proceeding whose appealability is governed by Article 450 of the CPL. Absent some
statute that authorizes such an appeal, quite simply no appeal exists.
12 | P a g e
In sum, in the absence of authority, statutory or otherwise, that there exists an
appeal from a motion to quash a search warrant, the underlying appeal cannot be
entertained. It must therefore be dismissed.
POINT II
ABSENT JUDICIAL OR LEGISLATIVE
AUTHORIZATION, THE CUSTODIAN OF A
RECORD HAS NEITHER STANDING TO SEEK
QUASHAL OF A SEARCH WARRANT NOR THE
ABILITY TO STAND IN THE SHOES OF THE
PERSON WHOSE RECORD IS PURPOTEDLY
SOUGHT IN VIOLATION OF THE FOURTH
AMENDMENT
As amicus understands it, Facebook appears to posit the notion that, as
custodian of the records that had been sought, it must serve as a bulwark against
governmental overreaching and thus has the right to challenge on Fourth Amendment
grounds any effort by a local prosecutor to obtain subscriber information (See Brief
for Appellant at 29-30). Of course, as respondent New York County District
Attorney (DANY) points out, custodian Facebook has not been aggrieved by the
search and itself has no privacy interest in the materials sought such that it would
even have standing to challenge the search warrants at issue.
Amicus, however, acknowledges that there is one significant circumstance in
which the custodian of a record may step in to challenge prosecution efforts to obtain
material in the custodian’s possession. That is when a prosecutor seeks an individual’s
13 | P a g e
medical records from his physician or other health care provider. In such a case,
“[h]ospitals may assert a physician-patient privilege under CPLR 4504 (a) to maintain
the confidentiality of patient medical records.” In re New York County, 98 N.Y.2d
525, 528 (2002). In New York County, an unidentified assailant stabbed a man to
death. His identity could not be established; all that had been determined was that the
assailant was Caucasian, in his 30s or 40s, and may have been bleeding when he fled.
Still unable to identify the assailant, the DANY served grand jury subpoenas
duces tecum on 23 hospitals, including four facilities operated by the New York City
Health and Hospitals Corporation (HHC). Those subpoenas sought:
any and all records pertaining to any male Caucasian patient
between the ages of 30 to 45 years, who was treated or who
sought treatment on May 25th, 1998 through May 26th,
1998 for a laceration, puncture wound or slash, or other
injury caused by or possibly caused by a cutting instrument
and/or sharp object, said injury being plainly observable to
a lay person without expert or professional knowledge; said
records including but not limited to said patient's name,
date of birth, address, telephone number, social security
number and other identifying information, except any and
all information acquired by a physician, registered nurse or
licensed practical nurse in attending said patient in a
professional capacity and which was necessary to enable
said doctor and/or nurse to act in that capacity.
The records were not provided; DANY moved to hold HHC in contempt, HHC
cross-moved to quash on privilege grounds and that motion was denied. The
Appellate Division reversed and quashed and on DANY’s appeal, this Court affirmed.
14 | P a g e
For purposes of this discussion, the reasons this Court reached that conclusion
are largely beside the point. What is significant is that the Court made clear that the
custodian of a medical record was obliged to defend against its disclosure. The reason
is obvious. CPLR 4504 explicitly places upon the custodian of such records the
obligation to resist their disclosure:
Unless the patient waives the privilege, a person authorized
to practice medicine, registered professional nursing,
licensed practical nursing, dentistry, podiatry or chiropractic
shall not be allowed to disclose any information which he
acquired in attending a patient in a professional capacity,
and which was necessary to enable him to act in that
capacity. The relationship of a physician and patient shall
exist between a medical corporation, as defined in article
forty-four of the public health law, a professional service
corporation organized under article fifteen of the business
corporation law to practice medicine, a university faculty
practice corporation organized under section fourteen
hundred twelve of the not-for-profit corporation law to
practice medicine or dentistry, and the patients to whom
they respectively render professional medical services.
Thus, physicians, nurses, and the business organizations they may form to practice
medicine are all obliged to resist disclosure of any material covered by the physician-
patient privilege.2
This is not all, however. Not only is the medical practitioner obliged to resist
disclosure of privileged material, a hospital is as well. This is because hospital records
2 Various statutes in New York create exception to the obligation to resist disclosure of material
covered by the physician-patient privilege, e.g., CPLR 4504(b) provides an exception when a child
under the age of sixteen has been the victim of a crime, Penal Law 265.25 requiring hospitals to
report gunshot wounds and serious wounds by knives and other sharp objects.
15 | P a g e
are made by health professionals who treat the subject of the file and contain
statements as to the observations of those physicians as to the condition and the
treatment of the patient as well as the conclusions of doctors with reference to the
any medical condition from which the patient suffers. Hence, parts of the hospital
records contain confidential communications made in the course of treatment and
must be protected from disclosure. See In re Coddington's Will, 307 N.Y. 181, 195
(1954). Put another way, the custodian of medical records has an affirmative statutory
obligation to resist disclosure by asserting the physician patient privilege on behalf of
the patient because the plain language of the CPLR prohibits the custodian from
disclosing the records.
As far as the materials sought here by DANY, any belief Facebook has that it
must stand as a bulwark against purported Fourth Amendment violations, its ability to
do so is defined by relevant statutes. In this case, all Facebook may raise to resist
disclosure are those arguments that made available to it by the Stored
Communications Act, 18 USC §2703(d).
A court order for disclosure under subsection (b) or (c)
may be issued by any court that is a court of competent
jurisdiction and shall issue only if the governmental entity
offers specific and articulable facts showing that there are
reasonable grounds to believe that the contents of a wire or
electronic communication, or the records or other
information sought, are relevant and material to an ongoing
criminal investigation. In the case of a State governmental
authority, such a court order shall not issue if prohibited by
the law of such State. A court issuing an order pursuant to
this section, on a motion made promptly by the service
16 | P a g e
provider, may quash or modify such order, if the
information or records requested are unusually voluminous
in nature or compliance with such order otherwise would
cause an undue burden on such provider.
18 USC § 2703(d) (emphasis added).
On its face then, the challenge that Facebook, as a service provider, may raise
to an order served upon it for the materials it must provide under the Stored
Communications Act are those which burden it to produce unusually voluminous
records or otherwise would place upon the provider an undue burden. This, of
course, is consistent with the New York practice when it comes to disclosure of any
type of electronic discovery in civil practice. See N.Y.Ct.Rules, § 202.12 (among
factors in deciding whether a case is reasonably likely to include electronic discovery is
whether there are less costly or less burdensome alternatives to secure the necessary
information without recourse to discovery of relevant electronically stored
information). There is no suggestion that any similar challenge is available to the
service provider to contest a Fourth Amendment claim.
What the CPLR and the SCA reflect is that the ability of a record’s custodian to
vindicate any right that the subject of the record may have is limited to that granted by
statute. This is made especially clear by United States v. Miller, 425 U.S. 435 (1976)
and subsequent legislation ameliorating its holding. In Miller, the Supreme Court held
that a bank customer who is the target of a criminal investigation cannot challenge on
Fourth Amendment grounds the admission into evidence in a criminal prosecution of
17 | P a g e
financial records obtained by the Government from his bank pursuant to allegedly
defective subpoenas, despite the fact that he was given no notice of the subpoenas. Id.
at 443, and n. 5. See also Donaldson v. United States, 400 U.S. 517, 522 (1971)
(Internal Revenue summons directed to third party does not trench upon any interests
protected by the Fourth Amendment); SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735,
743 (1984) (same with respect to SEC).
The immediate legislative response to the privacy concerns resulting from
Miller was the Right to Financial Privacy Act (RFPA), 12 USC § 3401, which accords
customers of banks and similar financial institutions certain rights to be notified of
and to challenge, in court, administrative subpoenas of financial records in the
possession of the banks. As one commentator has put it, the RFPA “protects the
confidentiality of personal financial records by creating a statutory Fourth
Amendment protection for bank records.” See Electronic Privacy Information
Center, The Right to Financial Privacy Act (available at https://epic.org/privacy/rfpa/
last visited November 17, 2016). As the Center explains, “the RFPA . . . . was
essentially designed to reverse Miller in the context of financial records and provide
standing for individuals to complain about the improper release of information about
them in records maintained by financial institutions.” By authorizing standing to the
person whose records are being sought, the RFPA necessarily bars the bank or
financial institution from raising its customers’ Fourth Amendment claims. Had the
legislature not acted in response to the Supreme Court’s decision in Miller, customers
18 | P a g e
of financial institutions would continue to lack standing to challenge the production
of their records.
Similarly, the Gramm-Leach-Bliley Act (GLBA), 15 USC §§ 6801 to 6809,
contains a number of provisions designed to protect the privacy of "nonpublic
personal information" that consumers provide to financial institutions, reflecting the
policy of Congress that each financial institution has an affirmative and continuing
obligation to respect the privacy of its customers and to protect the security and
confidentiality of those customers' nonpublic personal information. The GLBA
restricts the ability of a "financial institution" to disclose nonpublic personal
information to a nonaffiliated third party by requiring, subject to certain exceptions,
that the financial institution provide the consumer with notice of the institution's
disclosure policies and the opportunity for the consumer to "opt out" of disclosure.
The GLBA further mandates that an unaffiliated third-party recipient of
nonpublic personal information may not, directly or through an affiliate of the
receiving third party, disclose such information to any other person that is a
nonaffiliated third party of both the financial institution and the receiving third party,
unless such disclosure would be lawful if made directly to such other person by the
financial institution. See Validity, Construction, and Application of Information
Privacy Provisions of Gramm-Leach-Bliley Act, 15 USC §§ 6801 to 6809, and
Regulations Promulgated Thereunder, 5 A.L.R. Fed. 2d 497.
19 | P a g e
The SCA obviously seeks to do the same. Like the two statutes just discussed,
disclosure by an electronic service provider of account information is not barred.
And importantly, Congress knowing that it could include in its SCA legistlation the
right of a third-party provider to raise a challenge to efforts to gain access to the
information of its customers, chose not to create such a right. Moreover, the SCA
was drafted to ensure that electronic service providers had to comply under certain
circumstances without providing notice of to their customer.
Specifically, the government may compel the disclosure of content information
from an RCS provider in three ways. First, the government may require disclosure
without providing notice to the subscriber or customer “if the governmental entity
obtains a warrant issued using the procedures described in the Federal Rules of
Criminal Procedure (or, in the case of a State court, issued using State warrant
procedures) by a court of competent jurisdiction.” The second and third means of
compelling disclosure of content information from internet service providers require
the government to provide notice to the subscriber or customer. After satisfying the
prior-notice requirement, the government may obtain either “an administrative
subpoena authorized by a Federal or State statute or grand jury trial,” or “a court
order for such disclosure under § 2703(d).”
In the end, the banking disclosure statutes all suggest that any right to challenge
disclosure under the SCA must be strictly governed by statute. And, since the SCA
provides that a state authority may obtain a warrant pursuant to state procedures, it
20 | P a g e
logically follows that any effort to challenge the seizure/disclosure of material must be
consistent with those state procedures as well. That being the case, since New York
does not authorize pre-execution challenges to search warrants, nothing in the SCA
can be read to provide such authorization.
* * * * *
In sum, what Facebook is attempting to do is create a procedural mechanism
by which it can raise, on its customers’ behalf, pre-execution Fourth Amendment
challenges to search warrants obtained from neutral and detached magistrates and, if
unsuccessful, appeal from any orders denying relief. There is nothing that authorizes
creation of such a pre-execution procedure or an appeal from any order issued in
connection with the order. As was pointed out when a habeas corpus petitioner
sought and failed to extend the relevant statute of limitations by the filing of a motion
not recognized under state law, the Antiterrorism and Effective Death Penalty Act of
1996 does not “authorize tolling based on the filing of creative, unrecognized motions
for leave to appeal.” Adeline v Stinson, 206 F.3d 249, 253 (2d Cir. 2000). Here,
Facebook is emulating petitioner Adeline by filing a creative, unrecognized pre-
execution application to quash a search warrant. That effort is entitled to no more
recognition than was Adeline’s.
21 | P a g e
CONCLUSION
The order dismissing the appeal should be affirmed.
Dated:
Respectfully submitted,
THOMAS P. ZUGIBE
Rockland County District Attorney
President, District Attorneys
Association of the State of New York
c/o Richmond County District Attorney
130 Stuyvesant Place
Staten Island, New York 10301
KELLY WOLFORD
Assistant District Attorney/Monroe County
MORRIE I. KLEINBART
Assistant District Attorney/Richmond County
Counsel for Amicus Curiae