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 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. and Dated July 23, 2013
FACEBOOK, INC.,
Appellant,
– against –
NEW YORK DISTRICT ATTORNEY’S OFFICE,
Respondent.
BRIEF OF AMICI CURIAE FOURSQUARE LABS, INC.,
KICKSTARTER, PBC, MEETUP, INC., AND VIMEO, INC.
Of Counsel:
RICHARD J. HOLWELL
JOHN M. DIMATTEO
DANIEL M. SULLIVAN
BENJAMIN F. HEIDLAGE
HOLWELL SHUSTER & GOLDBERG LLP
Attorneys for Amici Curiae
750 Seventh Avenue, 26th Floor
New York, New York 10004
Tel.: (646) 837-5151
Fax: (646) 837-5150
Dated: December 30, 2016
i
COURT OF APPEALS RULE 500.1(f) DISCLOSURE STATEMENT
Pursuant to Rules 500.1(f) and 500.22(b)(5) of the Court of Appeals of the
State of New York, Foursquare Labs, Inc. states that it has no parents or affiliates
and two subsidiaries, Foursquare Labs UK Ltd. And Foursquare Labs Asia Ptd Ltd.
Pursuant to Rules 500.1(f) and 500.22(b)(5) of the Court of Appeals of the
State of New York, Meetup, Inc. states that it has no parents, subsidiaries, or
affiliates.
Pursuant to Rules 500.1(f) and 500.22(b)(5) of the Court of Appeals of the
State of New York, Kickstarter, PBC states that it has the following direct and
indirect subsidiaries: No. 2 Pencil LLC, 58 Kent LLC, The Creative Independent
LLC, Drip U.S. LLC, Huzza, Inc., Kickstarter Canada Services Ltd., and Kickstarter
London Ltd.
Pursuant to Rules 500.1(f) and 500.22(b)(5) of the Court of Appeals of the
State of New York, Vimeo, Inc. states that is a majority-owned subsidiary of
IAC/InterActiveCorp (“IAC”), a publicly traded company (NASDAQ:IACI). IAC
has no parent company, and no publicly-traded company owns more than 10% of
IAC’s common stock. Vimeo, Inc. has one subsidiary: VHX Corporation, a
Delaware corporation. Vimeo, Inc. has the following affiliates:
15Films, LLC
8831-8833 Sunset, LLC (U.S.)
About Information Technology (Beijing) Co., Ltd. (China)
About International (Cayman Is.)
ii
About, Inc. (U.S.)
Amsel, LLC (U.S.)
Apalon Apps LLC (Belr.)
APN, LLC (U.S.)
Applications Partner, LLC (U.S.)
Ask Applications, Inc. (U.S.)
Big Breakfast, LLC
Buzz Technologies, Inc. (U.S.)
CH Pacific, LLC (U.S.)
CityGrid Media, LLC (U.S.)
CollegeHumor Press LLC (U.S.)
Comedy News Ventures, Inc. (U.S.)
Connect, LLC (U.S.)
Connected Ventures, LLC (U.S.)
ConsumerSearch, Inc. (U.S.)
CraftJack Inc. (U.S.)
CV Acquisition Corp. (U.S.)
Daily Burn, Inc. (U.S.)
DatingDirect.com Limited (U.K.)
Delightful.com, LLC (U.S.)
Diamant Production Services, LLC (U.S.)
Diamond Dogs, LLC (U.S.)
Dictionary.com, LLC (U.S.)
ECS Sports Fulfillment LLC (U.S.)
Electus Productions, LLC (U.S.)
Electus, LLC (U.S.)
Elicia Acquisition Corp. (U.S.)
ES1 Productions, LLC (U.S.)
ES2 Productions, LLC (U.S.)
Eureka SG Pte. Ltd. (Sing.)
Eureka Taiwan (Taiwan)
Eureka Japan (Japan)
Failure to Appear Productions, LLC (U.S.)
Falcon Holdings II, LLC (U.S.)
Felix Calls, LLC (U.S.)
Five Star Matchmaking Information Technology (Beijing) Co., Ltd. (China)
Flaked Productions, LLC (U.S.)
iii
FriendScout24 GmbH (Ger.)
GetAFive, Inc. (U.S.)
Good Hang, LLC (U.S.)
Hatch Labs, Inc. (U.S.)
Higher Edge Marketing Services, Inc. (U.S.)
HL VP Partners Follow On Fund GP, LLC (U.S.)
HL VP Follow On Fund, L.P. (U.S.)
HL VP GP II, LLC (U.S.)
HL VP GP III, LLC (U.S.)
HL VP GP, LLC (U.S.)
HL VP II, L.P. (U.S.)
HL VP III, L.P. (U.S.)
HL VP, L.P. (U.S.)
Home Industry Leadership Board (U.S.)
HomeAdvisor B.V. (Neth.)
HomeAdvisor GmbH (Ger.)
HomeAdvisor, Inc. (U.S.)
HomeAdvisor International, LLC (U.S.)
HowAboutWe, LLC (U.S.)
HSN Capital LLC (U.S.)
HSN, LLC (U.S.)
HTRF Ventures, LLC (U.S.)
Humor Rainbow, Inc. (U.S.)
IAC 19th St. Holdings, LLC (U.S.)
IAC Applications Holding Limited Partnership (Ir.)
IAC Falcon Holdings, LLC (U.S.)
IAC Family Foundation, Inc. (U.S.)
IAC Search & Media (Canada) Inc. (Can.)
IAC Search & Media B.V. (Neth.)
IAC Search & Media Brands Computer Technology Co., Ltd. (China)
IAC Search & Media Brands, Inc. (U.S.)
IAC Search & Media Europe Limited (Ir.)
IAC Search & Media Finance Co. (Cayman Is.)
IAC Search & Media Hong Kong, Limited (H.K.)
IAC Search & Media International, Inc. (U.S.)
IAC Search & Media Massachusetts, Inc. (U.S.)
IAC Search & Media Technologies FinanceCo II (Cayman Is.)
iv
IAC Search & Media Technologies Limited (Ir.)
IAC Search & Media UK Limited (U.K.)
IAC Search & Media Washington, LLC (U.S.)
IAC Search & Media, Inc. (U.S.)
IAC Search Europe B.V. (Neth.)
IAC Search, LLC (U.S.)
IAC Shopping International, Inc. (U.S.)
IAC/Expedia Global, LLC (U.S.)
IACF Developments LLC (U.S.)
ImproveNet, Inc. (U.S.)
INKD LLC (U.S.)
Insider Pages, Inc. (U.S.)
InstantAction, LLC (U.S.)
InterActiveCorp Films, Inc. (U.S.)
InterActiveCorp Films, LLC (U.S.)
InterCaptiveCorp, Ltd. (Berm.)
Internet Shopping Network LLC (U.S.)
Investopedia Canada, Inc. (Can.)
Investopedia LLC (U.S.)
iWon Points LLC (U.S.)
Life123, Inc. (U.S.)
Lucky Morning Productions, LLC (U.S.)
M8 Singlesnet LLC (U.S.)
Maker Shack, LLC (U.S.)
Mash Dating, LLC (U.S.)
Massive Media Europe NV (Belg.)
Massive Media Limited (U.K.)
Massive Media Match NV (Belg.)
Match Group Europe Limited (Belg.)
Match Group, Inc. (U.S.)
Match Group, LLC (U.S.)
Match Internet Financial Services Designated Activity Company (Ir.)
Match ProfilePro, LLC (U.S.)
Match.com Europe Limited (U.K.)
Match.com Events LLC (U.S.)
Match.com Foreign Holdings II Limited (U.K.)
Match.com Foreign Holdings III Limited (U.K.)
v
Match.com Foreign Holdings Limited (U.K.)
Match.com Global Investments SARL (Lux.)
Match.com Global Services Limited (U.K.)
Match.com HK Limited (H.K.)
Match.com International Holdings, Inc. (U.S.)
Match.com International II Limited (U.K.)
Match.com International Limited (U.K.)
Match.com Investments, Inc. (Cayman Is.)
Match.com Japan KK (Japan)
Match.com Japan Networks GK (Japan)
Match.com LatAm Limited (U.K.)
Match.com Nordic AB (Swed.)
Match.com Offshore Holdings, Ltd (Mauritius)
Match.com Pegasus Limited (U.K.)
Match.com, L.L.C. (U.S.)
Matchcom Mexico, S. de R.L., de C.V. (Mex.)
Meetic Espana, SLU (Spain)
Meetic Italia SRL (It.)
Meetic Netherlands BV (Neth.)
Meetic SAS (Fr.)
Mhelpdesk, Inc. (U.S.)
Mile High Insights, LLC (U.S.)
Mindspark Interactive Network, Inc. (U.S.)
MM LatAm, LLC (U.S.)
Mojo Acquisition Corp. (U.S.)
Mogo Finance Co. (Cayman Is.)
Neu.de GmbH (Ger.)
Newsweek Philippines Inc. (Phil.)
Nexus Limited (U.K.)
Nice Little Day, LLC (U.S.)
Notional, LLC (U.S.)
NRelate LLC (U.S.)
Parperfeito Comunicacao SA (Braz.)
People Media, Inc. (U.S.)
People Media, LLC (U.S.)
Plentyoffish Media ULC (Can.)
Plentyoffish Media, LLC (U.S.)
vi
Pricerunner SAS (Fr.)
Prize Matters, LLC (U.S.)
Pronto, LLC (U.S.)
Publishing Partner, LLC (U.S.)
Rebel Entertainment, Inc. (U.S.)
Rio Bravo Productions, LLC (U.S.)
Riviere Productions (U.S.)
Search Floor, Inc. (U.S.)
ServiceMagic Canada Inc. (Can.)
ServiceMagic Europe S.à r.l. (Lux.)
ServiceMagic GmbH (Ger.)
ServiceMagic International S.à r.l. (Lux.)
ServiceMagic IP Ireland Limited (Ir.)
Shanghai Huike Network Technology Co., Ltd. (China)
Shoebuy.com, Inc. (U.S.)
Shoptouch, Inc. (U.S.)
Slimware Utilities Holdings, Inc. (U.S.)
Soulmates Technology Pty Ltd. (Austl.)
SpeedDate.com, LLC (U.S.)
Spotlight Studios, LLC (U.S.)
Stage Four, LLC (U.S.)
Starnet Interactive Ltd. (Isr.)
Starnet Interactive, Inc. (U.S.)
Styleclick Chicago, Inc. (U.S.)
Styleclick, Inc. (U.S.)
Styleclick.com Enterprises Inc. (U.S.)
Targeted Media Solutions LLC (U.S.)
TDB Holdings, Inc. (U.S.)
The Daily Beast Company LLC (U.S.)
The IAC Foundation, Inc. (U.S.)
Third Kind Venture Capital I GP, LLC (U.S.)
Third Kind Venture Capital I, L.P. (U.S.)
Tinder Development, LLC (U.S.)
Tinder, Inc. (U.S.)
TMC Realty, L.L.C. (U.S.)
TPR Education Canada, ULC (Can.)
TPR Education Holdings, Inc. (U.S.)
vii
TPR Education IP Holdings, LLC (U.S.)
TPR Education Offshore Holdings LLC (U.S.)
TPR Education Worldwide, LLC (U.S.)
TPR Education, LLC (U.S.)
TPR/Tutor.com Holdings, LLC (U.S.)
Travaux.com (Fr.)
Tutor.com, Inc. (U.S.)
USA Electronic Commerce Solutions LLC (U.S.)
USA Video Distribution LLC (U.S.)
USANi LLC (U.S.)
USANi Sub LLC (U.S.)
VHX Corporation
Vimeo FinanceCo LLC
Wanderspot LLC (U.S.)
Werkspot BV (U.S.)
viii
TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICI CURIAE .............................................. 1
PRELIMINARY STATEMENT ............................................................................. 5
ARGUMENT ........................................................................................................... 9
I. ONLINE PLATFORMS SHOULD BE PERMITTED TO
CHALLENGE SEARCH WARRANTS ISSUED UNDER
THE SCA ....................................................................................................... 9
A. Recipients Of Search Warrants Under The SCA
May Immediately Appeal Orders Denying
Motions To Quash ..................................................................... 9
B. Online Platforms Have Standing To Raise Fourth
Amendment Objections To Search Warrants
Issued Under The SCA ........................................................... 14
II. SEARCH WARRANTS SEEKING USER INFORMATION
CANNOT BE SEALED INDEFINITELY ................................................. 22
A. Unconstitutional Gag Orders Are Subject To
Judicial Review ....................................................................... 22
B. The Gag Order Is Improper And Imposes A
Particular Hardship On Small And Mid-Sized
Companies ............................................................................... 24
C. The SCA Must Be Interpreted To Avoid Violation
Of The First Amendment ........................................................ 29
CONCLUSION ...................................................................................................... 30
ix
TABLE OF AUTHORITIES
Page(s)
Cases
Al-Aulaqi v. Obama,
727 F. Supp. 2d 1 (D.C. Cir. 2010) ............................................................... 18
Application of U. S. of Am. for an Order Authorizing an In-Progress
Trace of Wire Commc’ns over Tel. Facilities,
616 F.2d 1122 (9th Cir. 1980) ....................................................................... 12
Application of U. S. of Am. for Order Authorizing Installation of Pen
Register or Touch-Tone Decoder & Terminating Trap,
610 F.2d 1148 (3d Cir. 1979) ................................................................. 12, 13
Auster Oil & Gas, Inc. v. Stream,
835 F.2d 597 (5th Cir. 1988) ......................................................................... 19
Bd. of Cnty. Comm’rs. v. Umbehr,
518 U.S. 668 (1996)....................................................................................... 26
Big Ridge, Inc. v. Fed. Mine Safety and Health Review Comm’n,
715 F.3d 631 (7th Cir. 2013) ......................................................................... 18
Brown v. Entm’t Merch. Ass’n,
564 U.S. 786, 794 (2011) .............................................................................. 30
Butterworth v. Smith,
494 U.S. 624 (1990)....................................................................................... 30
Daly v. Morgenthau,
No. 98 CIV. 3299 (LMM), 1998 WL 851611 (S.D.N.Y. Dec. 9, 1998) ....... 18
Davis v. United States,
564 U.S. 229 (2011)....................................................................................... 10
Garrison v. Louisiana,
379 U.S. 64 (1964) ......................................................................................... 28
Herring v. United States,
555 U.S. 135 (2009)................................................................................ 16, 17
x
Hometown Co-op. Apartments v. City of Hometown,
495 F. Supp. 55 (N.D. Ill. 1980) .................................................................... 17
In matter of Search Warrant for [Redacted]@hotmail.com,
74 F. Supp. 3d 1184 (N.D. Cal. 2014) ........................................................... 27
In re Apple, Inc.,
No. 15-MC-1902 (JO), 2016 WL 783565 (E.D.N.Y. Feb. 29, 2016) ........... 12
In re Application of the United States of America,
No. 14-480 (JMF), 2014 WL 1775601 (D.D.C. Mar. 31, 2014) ................... 23
In re Sealing & Non-Disclosure of Pen/Trap/2 703(d) Orders,
562 F. Supp. 2d 876 (S.D. Tex. 2008) .............................................. 24, 27, 28
In re XXX, Inc.,
No. 14 MAG. 2258, 2014 WL 5510865 (S.D.N.Y. Oct. 31, 2014) .............. 13
Jones v. United States,
365 F. App’x 309 (2d Cir. 2010) ................................................................... 15
United States v. Leary,
846 F.2d 592, 596 (10th Cir. 1988) ............................................................... 18
Mancusi v. DeForte,
392 U.S. 364 (1968)....................................................................................... 18
Matter of Abrams,
62 N.Y.2d 183 (1984) ............................................................................... 9, 11
Mia Luna, Inc. v. Hill,
No. 1:08-CV-585-TWT, 2008 WL 4002964 (N.D. Ga. Aug. 22, 2008) ...... 17
New York Cnty. Lawyers’ Ass’n v. New York,
294 A.D.2d 69 (1st Dept. 2002) .................................................................... 15
People v. Marin,
86 A.D.2d 40 (2d Dep’t 1982) ......................................................................... 9
People v. Thompson,
51 Misc.3d 693, 28 N.Y.S.3d 237 (Sup. Ct. N.Y. Cnty. 2016) ..................... 22
xi
Rakas v. Illinois,
439 U.S. 128 (1978)................................................................................ 16, 19
Reno v. Am. Civil Liberties Union,
521 U.S. 844 (1997)....................................................................................... 21
Riley v. California,
134 S. Ct. 24731 (2014) .......................................................................... 20, 21
See v. City of Seattle,
387 U.S. 541 (1967)................................................................................ 18, 19
United States v. Brown,
250 F.3d 907 (5th Cir. 2001) ......................................................................... 24
United States v. Caronia,
703 F.3d 149 (2d Cir. 2012) .......................................................................... 30
United States v. Galpin,
720 F.3d 436 (2d Cir. 2013) .......................................................................... 20
United States v. Jones,
132 S. Ct. 945 (2012) .............................................................................. 19, 20
United States v. New York Telephone Co.,
434 U.S. 159 (1977)....................................................................................... 12
United States v. Stevens,
559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) ..................... 26, 27
United States v. Taketa,
923 F.2d 665 (9th Cir. 1991) ........................................................................ 15
Statutes
132 Cong. Rec. S7987-04, 1986 WL 776264 .......................................................... 12
18 U.S.C. § 270 ........................................................................................................ 22
18 U.S.C. § 2705 ...................................................................................................... 29
xii
Other Authorities
“Editorial: Big Brother is Watching”, The Dallas Morning News (June 27,
2014) available at
http://www.dallasnews.com/opinion/editorials/20140627-editorial-
big-brother-is-watching.ece (last reviewed Dec. 27, 2016) .......................... 28
“Kickstarter is a Benefit Corporation,” Kickstarter, PBC, available at
https://www.kickstarter.com/charter (last visited Dec. 27, 2016) ................... 4
“Law Enforcement Data Requests,” Foursquare Labs, Inc., available at
https://support.foursquare.com/hc/en-us/articles/201066200-Law-
Enforcement-Data-Request-Guidelines (last visited Dec. 27, 2016) .............. 3
“Law Enforcement Guidelines,” Kickstarter, PBC, available at
http://www.kickstarter.com/law-enforcement
(last visited Dec. 27, 2016) .............................................................................. 3
“Public Perceptions of Privacy and Security in the Post-Snowden Era,”
Pew Research Center, Nov. 12, 2014, available at
http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsofPri
vacy_111214.pdf (last visited Dec. 27, 2016) ............................................... 26
“Tech-Information Now the Second Largest Engine of NYC Economy,
Supporting 262,000 Jobs,” MikeBloomberg.com, Sept. 30, 2013,
available at http://www.mikebloomberg.com/news/tech-
information-now-the-second-largest-engine-of-nyc-economy-
supporting-262000-jobs/ (last visited Dec. 27, 2016) ..................................... 2
Alicia Wanless, “When the Government Asks: Facebook’s Disclosure,”
The Sec Dev Foundation, Nov. 19, 2015, available at https://secdev-
foundation.org/when-the-government-asks-facebooks-disclosure/
(last visited Dec. 27, 2016) ............................................................................ 13
Chris Gayomali, “Facebook Data Requests from Law Enforcement are
Increasing,” Fast Company, Nov. 5, 2014, available at
http://www.fastcompany.com/3038087/facebook-datarequests-from-
law-enforcement-are-increasing (last visited Dec. 27, 2016) ........................ 13
Fergal Gallagher, “NYC Dominates Deloitte’s Report of Fastest Growing
Tech Companies,” Built In NYC, Nov. 16, 2015, available at
xiii
http://www.builtinnyc.com/2015/11/16/fastest-growing-tech-
companies-north-america-are-new-york (last visited Dec. 28, 2016) ............. 2
Freeman Klopott and Henry Goldman, “Technology Is The Fastest-
Growing Industry in NYC, Study Says,” Bloomberg Technology,
Apr. 28, 2014, available at
http://www.bloomberg.com/news/articles/2014-04-28/technology-is-
fastest-growing-industry-in-nyc-study-says
(last visited Dec. 27, 2016) .............................................................................. 2
Jon Markman, “Facebook, Microsoft and The Cloud Under the Sea,”
Forbes (June 13, 2016) (describing how “Facebook runs a
quintessential cloud business”), available at
http://www.forbes.com/sites/jonmarkman/2016/06/13/facebook-
microsoft-and-the-cloud-under-the-sea/#2d6af0247e13
(last visited Dec. 27, 2016) ............................................................................ 20
Justin P. Murphy & Adrian Fontecilla, “Social Media Evidence in
Government Investigations and Criminal Proceedings: A Frontier of
New Legal Issues,” 19 RICH. J.L. & TECH. 11 (2013) .................................. 25
Kate Rogers, “As Barriers To Entry Fall, More Entrepreneurs Take The
Plunge,” CNBC, June 27, 2015, available at
http://www.cnbc.com/2015/06/26/as-barriers-to-entry-fall-more-
entrepreneurs-take-the-plunge.html (last visited Dec. 27, 2016) .................. 13
New York Times Editorial Board, “Why Apple is Right to Challenge an
Order to Help the F.B.I.” The New York Times (Feb. 18, 2016)
available at http://www.nytimes.com/2016/02/19/opinion/why-
apple-is-right-to-challenge-an-order-to-help-the-fbi.html
(last reviewed Dec. 27, 2016) ........................................................................ 28
Office of the State Comptroller, Report 2-2015, New York City’s Growing
High-Tech Industry (April 2014), available at
https://www.osc.state.ny.us/osdc/rpt2-2015.pdf
(last visited Dec. 27, 2016) .............................................................................. 2
1
STATEMENT OF INTEREST OF AMICI CURIAE
Amici Curiae Foursquare Labs, Inc., Kickstarter, PBC, Meetup, Inc., and
Vimeo, Inc. (collectively, “New York Tech Amici”) are small and medium-sized
online platforms located in New York City.
Foursquare makes location-based applications that help users find their
friends and discover interesting places and experiences nearby. As of December
2016, Foursquare had over 50 million monthly active users who have made over
10 billion “check-ins” on Foursquare Swarm and left over 90 million tips about
places they have gone on Foursquare City Guide. In addition, Foursquare had over
100,000 developers using Foursquare applications and technology. Foursquare
employs about 155 people in New York.
Kickstarter is the world’s leading platform for funding creative projects.
Since Kickstarter launched in 2009, its platform has allowed about 12 million
backers to pledge some $2.8 billion in order to fund over 117,000 projects.
Kickstarter has 121 employees working in its office in Brooklyn.
Meetup is the world’s largest network of local community groups, enabling
people across the country and the world to find an existing Meetup group or start a
new one. Meetup changes people’s lives—and the cities and towns where they
live—by connecting people around the things that matter to them. There are over
2
29 million Meetup members and over 267,000 Meetup groups. The company
currently employs over 150 people, the majority in downtown New York.
Vimeo operates one of the world’s largest video sharing networks.
Launched in 2004, Vimeo has approximately 55 million registered members,
reaches a global audience of approximately 240 million per month, and delivers
approximately 1.2 billion video plays per month. The company employs more
than 190 employees, the majority in Manhattan.
In recent years, New York City has witnessed a tremendous growth in
internet-based entrepreneurship.1 A recent study found that tech is the city’s
second-largest job sector, and “[b]ecause of the growth of the tech/information
sector, New York City’s share of the nation’s private sector employment now
stands at its highest level since 1992.”2 Small and growing companies like New
York Tech Amici have been part of that development, and they therefore have a
1 See Fergal Gallagher, “NYC Dominates Deloitte’s Report of Fastest Growing Tech
Companies,” Built In NYC, Nov. 16, 2015, available at
http://www.builtinnyc.com/2015/11/16/fastest-growing-tech-companies-north-america-are-new-
york (last visited Dec. 28, 2016); Freeman Klopott and Henry Goldman, “Technology Is The
Fastest-Growing Industry in NYC, Study Says,” Bloomberg Technology, Apr. 28, 2014,
available at http://www.bloomberg.com/news/articles/2014-04-28/technology-is-fastest-
growing-industry-in-nyc-study-says (last visited Dec. 27, 2016).
2 “Tech-Information Now the Second Largest Engine of NYC Economy, Supporting 262,000
Jobs,” MikeBloomberg.com, Sept. 30, 2013, available at
http://www.mikebloomberg.com/news/tech-information-now-the-second-largest-engine-of-nyc-
economy-supporting-262000-jobs/ (last visited Dec. 27, 2016). See also Office of the State
Comptroller, Report 2-2015, New York City’s Growing High-Tech Industry (April 2014),
available at https://www.osc.state.ny.us/osdc/rpt2-2015.pdf (last visited Dec. 27, 2016).
3
special interest in ensuring that the law in this State protects their rights and the
rights of their users.
This appeal presents Facebook, Inc.’s challenge to bulk search warrants
compelling it to disclose massive amounts of data associated with 381 of its users’
accounts, coupled with a nondisclosure order indefinitely barring Facebook from
informing those users of the search warrants. New York Tech Amici regularly
receive or anticipate receiving search warrants and other information requests from
law enforcement agencies around the country. Indeed, Foursquare and Kickstarter
have developed law enforcement guidelines, which they publish in an effort to
make their responses to government information requests transparent and
efficient.3
Although New York Tech Amici comply with lawful information requests,
their users expect that the privacy of their information will be protected and New
York Tech Amici are strongly committed to doing so by raising, where
appropriate, objections to defective legal process. For example, Kickstarter’s
charter as a Delaware public benefit corporation includes the commitment to
“zealously defend the privacy rights and personal data of the people who use its
3 “Law Enforcement Data Requests,” Foursquare Labs, Inc., available at
https://support.foursquare.com/hc/en-us/articles/201066200-Law-Enforcement-Data-Request-
Guidelines (last visited Dec. 27, 2016); “Law Enforcement Guidelines,” Kickstarter, PBC,
available at http://www.kickstarter.com/law-enforcement (last visited Dec. 27, 2016).
4
service, including in its dealings with government entities.”4 New York Tech
Amici also have an interest in the right to provide notice to users of information
requests, which allows users to make their own decisions (which might differ from
New York Tech Amici’s independent legal decision) regarding how to respond and
whether to object. Moreover, some smaller companies may lack the resources to
fully litigate each search warrant or court order, which underscores the importance
of providing users with notice and an independent opportunity to object. In short,
from the perspective of small and mid-size online platforms like New York Tech
Amici, companies must be allowed to inform users of governmental information
requests, and to challenge unlawful or improper search warrants on behalf of
users—complete with the right to appeal adverse decisions.
4 “Kickstarter is a Benefit Corporation,” Kickstarter, PBC, available at
https://www.kickstarter.com/charter (last visited Dec. 27, 2016).
5
PRELIMINARY STATEMENT
This appeal is about whether recipients of bulk search warrants under the
Stored Communications Act (“SCA”) will ever have an opportunity to challenge
such warrants when they violate the United States Constitution. The search
warrants here were draconian: Facebook was dragooned into performing a dragnet
search of and production from 381 user accounts in violation of the Fourth
Amendment rights of both users and Facebook itself. It was also indefinitely
barred from publicly disclosing the warrants’ existence in violation of the First
Amendment.
Facebook objected, but has been denied the chance for its objections to be
heard on the merits. The Supreme Court, New York County (the “Trial Court”)
held that recipients of SCA search warrants cannot challenge the warrants’
compliance with the Fourth Amendment—misapplying the doctrine of Fourth
Amendment “standing” and ignoring third-party standing rules. The Trial Court
also reaffirmed the indefinite gag order. If the Trial Court closed the courthouse
door, the Appellate Division, First Department, locked it, holding that online
platforms have no right to challenge SCA search warrants “pre-enforcement”—
regardless of the practical and constitutional burdens they impose—and therefore
cannot appeal the rejection of such a challenge.
6
These holdings put Facebook and other online platforms that receive SCA
search warrants, like New York Tech Amici, between a rock and a hard place.
Online platforms may neither object to unlawful government intrusions nor notify
users of such intrusions. This double bind prevents online platforms from acting as
responsible custodians of their users’ private information, discouraging users from
using online platforms in the first place. Worse, it forces online platforms to be
complicit in the violation of their users’ rights. If this Court affirms, future judicial
orders may be indefinitely shielded from public scrutiny—denying online
platforms the opportunity to publicly challenge the Government’s practices. That
cannot be the law.
First, online platforms must be permitted to challenge whether SCA warrants
comply with the strictures of the Fourth Amendment, both on behalf of their users
and to vindicate their own interests. The First Department’s contrary conclusion
rests on its belief that the procedural safeguards available to criminal defendants—
pre-enforcement judicial review for probable cause and post-enforcement
suppression motions in a criminal proceeding—are sufficient. But such procedures
are cold comfort to Facebook and other online platforms (as well as the hundreds
of users that were never indicted) that will never be criminal defendants. Their
objections must be heard now or never.
7
By denying Facebook’s right to appeal, the First Department also let stand
the Trial Court’s incorrect holding that Facebook and other online platforms lack
Fourth Amendment “standing”—a judge-made limit on the judge-made
exclusionary rule—to challenge SCA warrants. That was error. Outside the
context of a motion to suppress, online platforms are entitled to represent the
privacy interests of their users under the well-established doctrine of third-party
standing. They may also raise their own Fourth Amendment interests in protecting
their property from the digital equivalent of a search and compelled production of
corporate records.
Lastly, the First Department’s decision effectively rejected, sub silentio,
Facebook’s challenge to the Trial Court’s indefinite gag order. That too was error.
Gag orders impose significant costs, especially on smaller online platforms
like New York Tech Amici, which must decide which search warrants and other
information requests to challenge. Because smaller companies often lack the
resources to fully litigate the propriety of each and every government information
request, it is critical that such companies be able to provide notice to their users,
who can then make their own determination whether to challenge a given request.
Prior restraints like the gag order imposed on Facebook have, not merely a
chilling, but a freezing effect on speech. That freeze threatens the willingness of
users to participate in online platforms—fora for speech of all kinds—for fear that
8
their private information will be obtained improperly and without their knowledge.
It also hampers the critical public discussion regarding governments’ access to
citizens’ online lives and whether third party companies like New York Tech
Amici can be compelled to provide that access. Thus, the gag order here offends
core First Amendment principles. At a minimum, the SCA should be read to
prohibit the imposition of a gag order without a defined expiration date, which the
Trial Court did not impose, and without particularized factual findings that the
order is justified, which the Trial Court did not make.
The First Department decision would permit SCA search warrants, no matter
how broad or invasive, to go unchallenged either by the companies conscripted
into satisfying them or by many of the users whose information is obtained. That
is not the law, and this Court should reverse the decision below.
9
ARGUMENT
I. ONLINE PLATFORMS SHOULD BE PERMITTED TO
CHALLENGE SEARCH WARRANTS ISSUED UNDER THE SCA
A. Recipients Of Search Warrants Under The SCA
May Immediately Appeal Orders Denying Motions To Quash
According to the First Department, law enforcement can force online
platforms to expend significant resources to gather the private information of their
users on behalf of the Government, even if doing so violates those users’
constitutional rights, and the platforms have no opportunity to object. As
Facebook explains, that holding ignores the provision for motions to quash SCA
search warrants, both in the SCA itself and under New York law, and conflicts
with this Court’s rule that “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.” Matter of
Abrams, 62 N.Y.2d 183, 192 (1984); see also People v. Marin, 86 A.D.2d 40, 42–
43 (2d Dep’t 1982) (permitting appeal of motion to quash subpoena where denial
of appeal “would irrevocably preclude” the third party “from any opportunity to
vindicate its position before an appellate body”).
New York Tech Amici write separately to emphasize the degree to which
the First Department’s approach ignores the bind in which SCA bulk search
warrants put online platforms. The First Department viewed this case as no
10
different from the garden-variety search-and-seizure situation, in which the law
guarantees Fourth Amendment rights by providing the “ex ante” protection of a
neutral magistrate who reviews and approves a search warrant before it is issued
and the “ex post” protection of a pretrial suppression motion in a criminal
proceeding once charges are brought. 14 N.Y.S. 3d 23, 27. In particular, the Court
leaned heavily on the availability of the suppression motion, calling it “vital,
because it can lead to the suppression of unconstitutionally seized evidence.” Id.
The First Department reasoned that “[t]hese protections eliminate any need for a
suspected citizen to make a pre-execution motion to quash a search warrant.” Id.
at 27–28.
Yet, for recipients of SCA search warrants like Facebook and New York
Tech Amici, the “vital” ex post protection of a suppression motion is meaningless.
A motion to suppress invokes the exclusionary rule to preclude the Government
from introducing at trial evidence obtained in violation of the Fourth Amendment.
That rule is a judicially created device designed to deter law enforcement from
unconstitutional searches by imposing a cost for such searches. It is not “designed
to ‘redress the injury’ occasioned by an unconstitutional search.” Davis v. United
States, 564 U.S. 229, 236 (2011).
Facebook, however, is not a target of investigation and will not be indicted;
it will never make a motion to suppress. Neither will the over 300 users whose
11
account information was produced to the Government but who were never
indicted. And, unlike a defendant invoking the exclusionary rule, Facebook and
the unindicted users do seek redress for a constitutional violation—among other
things, return of the information unlawfully seized. Thus, for Facebook and the
majority of its users, the First Department’s invocation of the motion to suppress as
the “sole remedy” to which they are entitled (14 N.Y.S.3d at 28) is tantamount to
saying there is no remedy at all. That cannot be right, and constitutes another
violation of this Court’s instruction to focus on “the true nature of the proceeding
and . . . the relief sought.” Abrams, 62 N.Y.2d at 191.
The Government and the First Department wrongly suggest that Facebook
and similarly situated companies want to have it “both ways” because they invoke
the probable cause standard applicable to SCA warrants while seeking the right to
challenge them pre-enforcement. See 14 N.Y.S.3d at 31; Gov. Br. at 25–26. This
is a complaint for Congress—as Facebook explains, in the SCA itself Congress
provided that a warrant is required for certain searches of electronic information
and afforded the recipient the right to challenge such a warrant. See Facebook Br.
at 22–24 (citing 18 U.S.C. § 2703(d)). And Congress was right to do so. The
Electronic Communications Privacy Act (Title II of which is the SCA) was
“designed to protect legitimate law enforcement needs while minimizing intrusions
on the privacy of system users as well as the business needs of electronic
12
communications system providers.” 132 Cong. Rec. S7987-04, 1986 WL 776264
(emphasis added). The SCA thus balances the rights and interests of three parties:
the Government’s interest in law enforcement, the targets’ privacy interests, and
the providers’ business needs. This balance requires not only that Fourth
Amendment requirements apply to searches of personal electronic data, but also
that the businesses that store such data be permitted to invoke those requirements.
Moreover, the Government elides the significant burdens that SCA warrants
impose on online platforms. Law enforcement conscripts warrant recipients—who
are themselves suspected of no wrongdoing—to do the heavy lifting in gathering
information. And the burden on online platforms goes beyond the cost and time of
compliance. It includes the burden of being forced to participate in potential
violations of the constitutional rights of their own customers without the
opportunity to make their objections to a court beforehand. In similar situations,
courts have provided for a pre-enforcement opportunity to be heard.5
5 Indeed, as the Supreme Court held in United States v. New York Telephone Co., the power of
the courts to order third parties to assist the government in executing a search warrant is not
unlimited, but rather is subject to constraints other than the requirement of probable cause. See
434 U.S. 159, 174 (1977); see also In re Apple, Inc., No. 15-MC-1902 (JO), 2016 WL 783565, at
*6 (E.D.N.Y. Feb. 29, 2016). Further, courts have recognized that third-party recipients of
government search requests (such as phone traces) should receive a pre-enforcement opportunity
to be heard as matter of due process. Application of U. S. of Am. for an Order Authorizing an In-
Progress Trace of Wire Commc’ns over Tel. Facilities, 616 F.2d 1122, 1132–33 (9th Cir. 1980)
(“[W]e believe that a telephone company whose cooperation in electronic surveillance is sought
should be afforded reasonable notice and an opportunity to be heard prior to the entry of any
order compelling its assistance.”); Application of U. S. of Am. for Order Authorizing Installation
13
For small and mid-size companies like New York Tech Amici, these
burdens are especially onerous. A virtue of the internet is the ease with which new
entrepreneurs can enter the market and quickly provide millions of users with
innovative services.6 For example, collectively, New York Tech Amici have over
146 million users and only a little more than 600 employees. At the same time, as
people continue to integrate online platforms like New York Tech Amici into their
personal lives, law enforcement agencies increasingly target the user data those
platforms maintain.7 If New York Tech Amici cannot object to government
information requests, then the virtue of such internet companies—the ability to
serve many users efficiently—will become a curse. Online platforms would be
faced with the specter of burdensome and invasive requests, which sap their
limited resources and undermine users’ confidence in the privacy of their data, and
of Pen Register or Touch-Tone Decoder & Terminating Trap, 610 F.2d 1148, 1157 (3d Cir.
1979) (concluding “that due process requires a hearing on the issue of burdensomeness before
compelling a telephone company to provide tracing assistance”); see also In re XXX, Inc., No. 14
MAG. 2258, 2014 WL 5510865, at *2 (S.D.N.Y. Oct. 31, 2014) (“Courts have held that due
process requires that a third party subject to an order under the All Writs Act be afforded a
hearing on the issue of burdensomeness prior to compelling it to provide assistance to the
Government.”).
6 Kate Rogers, “As Barriers To Entry Fall, More Entrepreneurs Take The Plunge,” CNBC, June
27, 2015, available at http://www.cnbc.com/2015/06/26/as-barriers-to-entry-fall-more-
entrepreneurs-take-the-plunge.html (last visited Dec. 27, 2016).
7 Chris Gayomali, “Facebook Data Requests from Law Enforcement are Increasing,” Fast
Company, Nov. 5, 2014, available at http://www.fastcompany.com/3038087/facebook-
datarequests-from-law-enforcement-are-increasing (last visited Dec. 27, 2016); see also Alicia
Wanless, “When the Government Asks: Facebook’s Disclosure,” The Sec Dev Foundation, Nov.
19, 2015, available at https://secdev-foundation.org/when-the-government-asks-facebooks-
disclosure/ (last visited Dec. 27, 2016).
14
yet have no choice but to acquiesce. It is thus critical that New York Tech Amici,
and other online platforms, have the opportunity to challenge overbroad and
unconstitutional search warrants.
B. Online Platforms Have Standing To Raise Fourth Amendment
Objections To Search Warrants Issued Under The SCA
The First Department’s decision left intact the Trial Court’s holding that
online platforms like Facebook and New York Tech Amici lack standing to raise
Fourth Amendment objections to the search warrants here. The Trial Court held
that “it is the Facebook subscribers who could assert an expectation of privacy in
their postings, not the digital storage facility, or Facebook.” A35 (Order at 3).8
This is wrong: The Trial Court confused Fourth Amendment standing—a
substantive predicate for invoking the exclusionary rule—with jurisdictional
standing. Online platforms have jurisdictional standing to raise Fourth
Amendment objections of their users under the doctrine of third-party standing.
Online platforms also have standing to assert their own Fourth Amendment rights
against unlawful searches of their property—namely the servers they own (or cloud
computing space they rent), where they store user information. Either way, the
companies are legitimate, logical parties to raise Fourth Amendment objections.
8 References to “A” followed by a page number refer to the Appendix of Appellant Facebook in
New York County Clerk's Index Number 30207/13.
15
1. Online Platforms Have Third-Party Standing
The doctrine of third-party standing permits a party to raise the rights of
another when there is “some substantial relationship between the party asserting
the claim and the rightholder”; it is “impossib[le] [for] the rightholder [to] assert[]
his own rights”; and there is a “need to avoid a dilution of the parties’
constitutional rights.” New York Cnty. Lawyers’ Ass’n v. New York, 294 A.D.2d
69, 75 (1st Dept. 2002) (permitting organization to raise third parties’ rights to
effective assistance of counsel) (citing Powers v. Ohio, 499 U.S. 400, 410–12
(1991)). As Facebook correctly argues, online platforms satisfy these
requirements—indeed, given the commitment of companies like New York Amici
to protecting their users’ privacy rights, online platforms are particularly well
suited to object to improper warrants on their users’ behalf. Yet the Trial Court
simply ignored third-party standing doctrine altogether. Instead, and without
analysis, the Trial Court analyzed Facebook’s claims under the principles of Fourth
Amendment standing, a doctrine developed in the context of motions to exclude
evidence from a criminal trial. That was error.
Fourth Amendment “standing” is not jurisdictional. It is “a matter of
substantive [F]ourth [A]mendment law; to say that a party lacks [F]ourth
[A]mendment standing is to say that his reasonable expectation of privacy has not
been infringed.” United States v. Taketa, 923 F.2d 665, 669 (9th Cir. 1991); Jones
16
v. United States, 365 F. App’x 309 (2d Cir. 2010) (“‘Fourth Amendment standing,
unlike Article III standing, is a matter of substantive Fourth Amendment law’”)
(quoting United States v. SDI Future Health, Inc., 568 F.3d 684, 695 (9th Cir.
2009)); see also People v. Wesley, 73 N.Y.2d 351, 356 (1989) (“the issue of
‘standing’ [is] simply an application of substantive Fourth Amendment doctrine”).
Fourth Amendment “standing” is thus really a merits question. It is distinct from
jurisdictional principles, like third-party standing, that govern who can assert the
merits of a particular claim. Thus, whether a particular party can itself make out a
Fourth Amendment claim is different from whether it can assert a claim on behalf
of someone else. And New York law answers the latter question by permitting a
party to raise the rights of another in situations like this one.
The genesis of the Fourth Amendment “standing” doctrine explains why it
does not apply here. The doctrine was created as a limit on the exclusionary rule
(itself judge-made), by which a criminal defendant seeks to exclude evidence from
trial. The United States Supreme Court explained that “[c]onferring standing to
raise vicarious Fourth Amendment claims would necessarily mean a more
widespread invocation of the exclusionary rule during criminal trials” and “[e]ach
time the exclusionary rule is applied it exacts a substantial social cost for the
vindication of Fourth Amendment rights.” Rakas v. Illinois, 439 U.S. 128, 137
(1978). That is, application of the exclusionary rule inherently risks that “the
17
criminal [will] ‘go free because the constable has blundered.’” (Herring v. United
States, 555 U.S. 135, 148 (2009) (quoting People v. Defore, 242 N.Y. 13, 21
(1926) (Cardozo, J.)). To reduce this social cost, the Supreme Court limited the
reach of the exclusionary rule through Fourth Amendment “standing.”
But there is no risk of inflicting such costs when companies like Facebook
and New York Tech Amici challenge search warrants issued under the SCA. The
recipient of the search warrant is not seeking to suppress evidence; it is not a target
of investigation. Indeed, challenges to SCA search warrants, as in this case,
frequently come before criminal charges are brought. If it turns out that the
company’s objections are well-founded, permitting it to raise them and correcting
mistakes in response (which the Government here refused to do) ensures that the
evidence on which prosecutors ultimately bring charges is procured lawfully. That
aids, not hinders, just prosecution.
Unsurprisingly, then, where vicarious Fourth Amendment claims arise
outside of the context of the exclusionary rule, courts evaluate the facts before
them to determine whether the requirements of third-party standing are met. See
Mia Luna, Inc. v. Hill, No. 1:08-CV-585-TWT, 2008 WL 4002964, at *7 (N.D.
Ga. Aug. 22, 2008) (permitting club owner to assert the Fourth Amendment rights
of patrons stopped at roadblocks on an access road to the club); Hometown Co-op.
Apartments v. City of Hometown, 495 F. Supp. 55, 57–58 (N.D. Ill. 1980)
18
(permitting cooperative to make Fourth Amendment challenge to ordinance
requiring inspection of cooperative property prior to sale or lease of units on behalf
of prospective buyers and tenants); see also Al-Aulaqi v. Obama, 727 F. Supp. 2d
1, 15–35 (D.C. Cir. 2010) (evaluating whether a son’s Fourth Amendment claims
could be asserted by his father under third-party standing and “next friend”
doctrines); Daly v. Morgenthau, No. 98 CIV. 3299 (LMM), 1998 WL 851611, at
*4 (S.D.N.Y. Dec. 9, 1998) (noting Fourth Amendment standing rule, but
nonetheless evaluating whether third-party standing was appropriate in the
circumstances). That is what the Trial Court should have done here.
2. Online Platforms Can Raise
Fourth Amendment Objections In Their Own Right
The First Department and the Trial Court also ignored that online platforms
like Facebook have Fourth Amendment interests of their own at stake.
Fourth Amendment protection extends to a corporation’s place of business.
See, e.g., Mancusi v. DeForte, 392 U.S. 364, 367 (1968). And a corporation “has
standing with respect to searches of corporate premises and seizure of corporate
records.” United States v. Leary, 846 F.2d 592, 596 (10th Cir. 1988). Thus, “[a]
government agency typically must secure a warrant”—a valid one—“before
conducting a search of commercial premises or a business,” and its failure to do so
may be challenged by the business. Big Ridge, Inc. v. Fed. Mine Safety and Health
Review Comm’n, 715 F.3d 631, 644 (7th Cir. 2013); see also See v. City of Seattle,
19
387 U.S. 541, 543 (1967) (applying equal Fourth Amendment scrutiny to search of
business as to search of residence).
Fourth Amendment interests, whether of a business or individual, are not
limited to property or information in which one has an expectation of privacy. On
the contrary, an invasion of a protected property interest alone suffices to make out
a Fourth Amendment violation on the part of the property-holder. As the United
States Supreme Court put it, the “reasonable-expectation-of-privacy test has been
added to, not substituted for, the common-law trespassory test.” United States v.
Jones, 132 S. Ct. 945, 952 (2012); see also Rakas, 439 U.S. at 143 n.12 (noting
that “the Court has not altogether abandoned use of property concepts in
determining the presence or absence of the privacy interests protected by that
Amendment”); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 600–01 (5th Cir.
1988) (corporation could assert Fourth Amendment claim based on violation of
“possessory” interest in equipment).
United States v. Jones is instructive. There, the Supreme Court held the
Fourth Amendment applied to the placement of a GPS device on the undercarriage
of a car in which the defendant “had at least the property rights of a bailee,”
regardless of whether he had a reasonable expectation of privacy in the identity of
the places to which he drove. 132 S. Ct. 945, 949 n.2 & 950–51 (2012). Jones
relied on Alderman v. United States, 394 U.S. 165 (1969), pointing out that, there,
20
the Court had permitted defendants to exclude “conversations between other
people obtained by warrantless placement of electronic surveillance devices in
[defendants’] homes” even though the “conversational privacy of the homeowner”
had not been invaded.” Jones, 132 S. Ct. at 950–51 (quoting Alderman, 394 U.S.
at 176).
These principles are not limited to physical property. A seizure of data,
regardless of whose privacy interests it implicates, triggers the Fourth Amendment
rights of online platforms as business proprietors. Companies like New York Tech
Amici hold their users’ information by storing it either on servers that they own
and operate on business premises, or in space they rent in a “cloud”—essentially a
digital storage unit.9 In analyzing the Fourth Amendment implications of such
technology, courts should draw functional, rather than formal, analogies. See, e.g.,
Riley v. California, 134 S. Ct. 2473, 2489–91 (2014) (deeming search of a smart
phone incident to arrest improper because it was analogous to, if not more invasive
than, a search of a house). Thus, just as a personal “computer hard drive [is] akin
to a residence in terms of the scope and quantity of private information it may
contain,” United States v. Galpin, 720 F.3d 436, 446 (2d Cir. 2013), so a business’s
9 See Jon Markman, “Facebook, Microsoft and The Cloud Under the Sea,” Forbes (June 13,
2016) (describing how “Facebook runs a quintessential cloud business”), available at
http://www.forbes.com/sites/jonmarkman/2016/06/13/facebook-microsoft-and-the-cloud-under-
the-sea/#2d6af0247e13 (last visited Dec. 27, 2016).
21
server or cloud space is like a storage warehouse. It should be treated as such for
Fourth Amendment purposes.
Ignoring these principles, the First Department advanced a cramped
interpretation of the Fourth Amendment. It seemed to think that, because
“computer records are stored in a technologically innovative form,” there is a
“question whether they are sufficiently like other records to engender the
‘reasonable expectation of privacy’ required for Fourth Amendment protection.”
14 N.Y.S.3d at 30. The Court hinted that computer records get “far weaker”
Fourth Amendment protection on the ground that “[u]nlike the tangible physical
objects mentioned by the Fourth Amendment”—that is, houses, papers, and
effects—they “typically consist of ordered magnetic fields or electrical impulses.”
Id. at 30 & n.6. But one does not lose Fourth Amendment protection by
communicating through, or storing information with, new technology any more
than one loses First Amendment protection by communicating through the internet.
Compare Riley, 134 S. Ct. 2473 (applying Fourth Amendment to search of a smart
phone) with Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (finding
“no basis for qualifying the level of First Amendment scrutiny that should be
applied to this medium [i.e., the internet]”). Given how much information today is
22
stored electronically, the First Department’s approach is as disturbing as it is
misguided.10
Put simply, online platforms like Facebook and New York Tech Amici are
in a technologically updated version of the position of the homeowner in
Alderman. Perhaps the information sought in an SCA search warrant implicates
the privacy concerns of users rather than of the companies themselves (although it
may implicate both). That does not mean that the companies have no right to
protest the digital equivalent of the compelled production of files from a corporate
warehouse. On the contrary, businesses have a right to the security of the data they
maintain in their storage systems, and the seizure of that data implicates the Fourth
Amendment rights of the companies as proprietors.
II. SEARCH WARRANTS SEEKING USER INFORMATION
CANNOT BE SEALED INDEFINITELY
A. Unconstitutional Gag Orders Are Subject To Judicial Review
The Trial Court included in the bulk search warrants a blanket gag order
“pursuant to 18 U.S.C. § 270[5](b)” that prohibited Facebook from “notif[ying] or
otherwise disclos[ing] the existence or execution of [each] warrant/order to any
associated user/account holder.” A11–12 (Warrant at 3–4). This gag order had no
10 Indeed, at least one court has concluded that the First Department’s decision means that “users
who entrust the security of their on-line communications to third-parties like Facebook relinquish
any Fourth Amendment protection for that information,” a startling implication in the digital age.
People v. Thompson, 51 Misc.3d 693, 699, 28 N.Y.S.3d 237, 243 (Sup. Ct. N.Y. Cnty. 2016).
23
time limit, forever barring Facebook from disclosing the existence of the warrants.
Facebook challenged the order before the Trial Court and the First Department as a
prior restraint impermissible under both the SCA and the First Amendment; it
repeats its objections here. New York Tech Amici support those arguments. For
small and mid-size online platforms, gag orders impose as much hardship, if not
more, as the overbreadth of the warrant itself.
The First Department ignored this important issue, dismissing Facebook’s
challenge to the gag order without mentioning it. A gag order “implicate[s] [a
warrant recipient’s] rights under the First Amendment because it [is] both a
content-based restriction of speech and a prior restraint on speech.” In re
Application of the United States of America, No. 14-480 (JMF), 2014 WL
1775601, at *2 (D.D.C. Mar. 31, 2014). And it is well settled that the subject of a
gag order can challenge it. Id. (sua sponte providing Twitter a right to be heard on
government’s §2705(b) request, noting that the government’s request also
“implicates Twitter’s due process rights under the Fifth Amendment”). By
ignoring this issue and focusing on the availability of the suppression remedy for
violations of the Fourth Amendment, the First Department effectively held there is
no remedy for the denial of Facebook’s right to speak. This alone was reversible
error.
24
B. The Gag Order Is Improper And Imposes A Particular Hardship
On Small And Mid-Sized Companies
The indefinite gag order imposed by the Trial Court is a content-based, prior
restraint on speech. As other amici explain, the gag order cannot even pass muster
under the strict scrutiny standard applicable to content-based speech restrictions, to
say nothing of the higher hurdle that prior restraints must surmount. See In re
Sealing & Non-Disclosure of Pen/Trap/2 703(d) Orders, 562 F. Supp. 2d 876, 882
(S.D. Tex. 2008) (“In order to justify . . . a prior restraint, the government must
demonstrate that (1) the activity restrained poses a clear and present danger or a
serious and imminent threat to a compelling government interest; (2) less
restrictive means to protect that interest are unavailable; and (3) the restraint is
narrowly-tailored to achieve its legitimate goal.”).
Indefinite gag orders such as those imposed by the Trial Court are
particularly damaging to small and mid-size online platforms like New York Tech
Amici. Courts typically give a wide berth to First Amendment rights in order to
prevent the chilling of protected speech, but where an ordinary restriction on
speech chills, “prior restraint freezes.” In re Sealing, 562 F. Supp. 2d at 882 n.11
(quoting Alexander M. Bickel, THE MORALITY OF CONSENT 61 (1975)); see also
United States v. Brown, 250 F.3d 907, 915 (5th Cir. 2001) (Prior restraints “are
constitutionally disfavored in this nation nearly to the point of extinction.”). And
for companies like New York Tech Amici, the freeze is deep.
25
Smaller companies do not, and often cannot, litigate requests for
information. A company might decide to comply because it does not perceive a
defect in the warrant or other legal process, though the targeted user might make a
different assessment, or the company may simply not have the resources to litigate.
It is therefore critical for online platforms, especially smaller ones, to be able to
inform their users of government searches so that users can decide for themselves
whether, when, and how to assert their rights. As a matter of practice, unless
silenced by a gag order, New York Tech Amici generally provide notice to users of
a government search request. Such notice can be the only way users learn of a
request. Cf. Justin P. Murphy & Adrian Fontecilla, “Social Media Evidence in
Government Investigations and Criminal Proceedings: A Frontier of New Legal
Issues,” 19 RICH. J.L. & TECH. 11, 16 (2013) (discussing case in which “the
defendant was only able to move to quash the subpoena because Twitter’s policy is
to notify users of requests for their information prior to disclosure”) (quotation
marks omitted). While the First Department and Government suggest various
post-enforcement remedies the target of a search warrant might take (see 14 N.Y.S.
3d at 17 n.3; Gov. Br. at 33), such remedies do not help individuals who do not
receive notice.
Transparency not only furthers New York Tech Amici’s interest in open
communication with their users, it also ensures that users are willing to participate
26
in online platforms in the first place. Users are concerned about data security and
privacy.11 Indefinite gag orders create uncertainty regarding the extent of
government surveillance, discouraging the use of online services and harming New
York Tech Amici’s business. This is not just an economic harm, but a
constitutional one. New York Tech Amici, like other online platforms, provide
critical fora for social, political, and cultural speech. By discouraging users from
creating such speech, the threat of secret government surveillance damages First
Amendment interests. Cf. Bd. of Cnty. Comm’rs. v. Umbehr, 518 U.S. 668, 674
(1996) (“[C]onstitutional violations may arise from the deterrent, or ‘chilling,’
effect of governmental efforts that fall short of a direct prohibition against the
exercise of First Amendment rights.”) (alteration and quotation marks omitted).
The Government insists that the Trial Court here “made clear” that the
“order would remain in effect only until [the judge] determined it was no longer
necessary” and points out that the Government ultimately asked that the order be
rescinded as to indicted individuals. Gov. Br. at 50. In short, the Government’s
response is: “trust us.” This flips First Amendment doctrine—which requires the
Government to make the extraordinary showing that a prior restraint is necessary—
11 See “Public Perceptions of Privacy and Security in the Post-Snowden Era,” Pew Research
Center, Nov. 12, 2014, 11–12, available at
http://www.pewinternet.org/files/2014/11/PI_PublicPerceptionsofPrivacy_111214.pdf (last
visited Dec. 27, 2016).
27
on its head. C.f. United States v. Stevens, 559 U.S. 460, 480, 130 S. Ct. 1577,
1591, 176 L. Ed. 2d 435 (2010) (“We would not uphold an unconstitutional statute
merely because the Government promised to use it responsibly.”).
And, as a practical matter, such reliance on Government diligence is
misplaced. For example, after surveying data from the Southern District of Texas,
Houston Division, the court in In re Sealing found that “out of 3886 orders sealed
‘until further order of the court,’ [between 1995 and 1997] 99.7% remain[ed] under
seal [in 2008], many years after issuance.” 562 F. Supp. 2d at 878. This is
unsurprising. Requests for unsealing “surely . . . could come only at the behest of
the government, which uniquely has access to the underlying facts of the
investigation.” In matter of Search Warrant for [Redacted]@hotmail.com, 74 F.
Supp. 3d 1184, 1186 (N.D. Cal. 2014). Such requests are not typically a
prosecutor’s priority.
The Government’s assurances are thus cold comfort. While the Government
asserts it was diligent here, such diligence resulted from Facebook’s active and
persistent challenge of the underlying warrants and gag order. But smaller online
platforms like New York Tech Amici may not always have the resources to hold
the Government’s feet to the fire. Indeed, it would be unreasonable to expect such
companies (or any third party provider) to continually monitor the status of every
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government investigation into their users’ online content and request unsealing
when the investigations appear to have concluded.
Finally, gag orders such as these stifle New York Tech Amici’s and their
users’ ability to participate in the public debate on the propriety of government
surveillance. See In re Sealing, 562 F. Supp. 2d at 885 (“[T]he use of new and
innovative technology to investigate, apprehend, and prosecute criminal suspects is
a regular staple of media attention at local, state, and national levels.”). The scope
of government surveillance and the role companies like New York Tech Amici are
forced to play in such surveillance are matters of public concern.12 Companies like
New York Tech Amici, as recipients of government information requests, should
be able to provide their unfettered viewpoints in a wide-open public discussion.
Cf. Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (“The First . . . Amendment[]
“embod[ies] our ‘profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open . . . .”). But perpetual
gag orders prevent the robust and transparent debate that blanket search warrants
merit and that the country deserves.
12 See, e.g., “Editorial: Big Brother is Watching”, The Dallas Morning News (June 27, 2014)
available at http://www.dallasnews.com/opinion/editorials/20140627-editorial-big-brother-is-
watching.ece (last reviewed Dec. 27, 2016) (discussing potential changes to the SCA); New
York Times Editorial Board, “Why Apple is Right to Challenge an Order to Help the F.B.I.” The
New York Times (Feb. 18, 2016) available at http://www.nytimes.com/2016/02/19/opinion/why-
apple-is-right-to-challenge-an-order-to-help-the-fbi.html (last reviewed Dec. 27, 2016).
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C. The SCA Must Be Interpreted To Avoid Violation Of The First
Amendment
The SCA authorizes courts to issue a non-disclosure order only in the
limited instances where the court “determines that there is reason to believe that
notification of the existence of the warrant . . . will result in” one of five threats to
a government investigation, such as “destruction of or tampering with evidence.”
18 U.S.C. § 2705(b), (b)(3). The Trial Court relied on this provision, but its
conclusory statements that a gag order was necessary reduce the statute’s
requirements to lip service. Section 2705(b) must be read to avoid violation of the
First Amendment by requiring a court to make particularized factual findings
supporting a gag order.
The Government acknowledges that “[t]he SCA . . . obliges a trial court to
make certain findings before ordering nondisclosure.” Gov. Br. at 54. In this case,
the Trial Court made no factual determinations in support of its order, merely
asserting that “[i]t is obvious” that “[e]videntiary leads resulting from the
Facebook material could be destroyed, removed or deleted” and that “[i]ndividuals
of interest, suspects, or witnesses could flee or be intimidated.” A36 (Order at 4).
This is not enough.
In the first place, the warrant itself addresses the former concern—it
authorizes a search for information deleted or removed by users. See A9–11
(Warrant at 1–3). More importantly, if the Court’s ipse dixit proclamation sufficed
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under the SCA to issue a gag order, the statute would violate the First Amendment.
Section 2705(b) authorizes courts to issue content-based speech restrictions, which
means it must be “justified by a compelling government interest and [be] narrowly
drawn to serve that interest.” Brown v. Entm’t Merch. Ass’n, 564 U.S. 786, 794
(2011). But without particularized findings that one of the threats listed in the
SCA exists, the statute’s authorization to restrict speech is not narrowly drawn to
serve the government’s interest. See, e.g., Butterworth v. Smith, 494 U.S. 624
(1990) (statute barring disclosure of grand jury testimony was unconstitutional as
applied after grand jury had retired, in part because the government’s interests
were not advanced by the prohibition). Indeed, if the Trial Court’s recitation was
sufficient, it’s hard to imagine a scenario where a court would need to undertake
any meaningful analysis. The SCA must therefore be construed to require courts
to make the particularized findings that the Trial Court failed to make here. See,
e.g., United States v. Caronia, 703 F.3d 149, 160 (2d Cir. 2012) (invoking “the
principle of constitutional avoidance” to avoid a statutory “construction [that]
would raise First Amendment concerns”).
CONCLUSION
For the foregoing reasons, Foursquare Labs Inc., Kickstarter PBC, Meetup
Inc., and Vimeo, Inc. respectfully request that the Court reverse the decision
below.
Dated: New York, New York
December 30, 2016
Respectfully submitted,
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jdimatteo@hsgllp. com
Daniel M. Sullivan
dsullivan@hsgllp. com
Benjamin F. Heidlage
bheidlage@hsgllp. com
HOL WELL SHUSTER &
GOLDBERG LLP
7 50 Seventh A venue, 26th Floor
New York, New York 10019
Tel.: 646-837-5151
Fax: 646-837-5150
Attorneys for Amici Curiae
NEW YORK STATE COURT OF APPEALS
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to 22 NYCRR PART 500.1 G) that the foregoing brief
was prepared on a computer using Microsoft Word 20 13.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 14
Line spacing: Double
Word Count. The total number of words in this brief, inclusive of point headings
and footnotes and exclusive of pages containing the table of contents, table of
citations, proof of service, certificate of compliance, corporate disclosure statement,
questions presented, statement of related cases, or any authorized addendum
containing statutes, rules, regulations, etc., is 6989 words.
Dated: December 30, 2016
Daniel M. Sullivan
7 50 Seventh A venue, 26th Floor
New York, New York 10019
Tel.: 646-837-5151
Fax: 646-837-5150
dsullivan@hsgllp. com
Counsel for Amici Curiae
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