APL-2015-00318
Court of Appeals
STATE OF NEW YORK
In re 381 Search Warrants Directed to Facebook, Inc. and Dated July
23, 2013
FACEBOOK, INC.,
Appellant,
- against -
NEW YORK COUNTY DISTRICT ATTORNEY’S
OFFICE,
Respondent.
In the Matter of the Motion to Compel Disclosure of
the Supporting
Affidavit Relating to Certain Search Warrants
Directed to Facebook, Inc.,
Dated July 23, 2013
FACEBOOK, INC.,
Appellant,
- against -
NEW YORK COUNTY DISTRICT ATTORNEY’S
OFFICE,
Respondent.
BRIEF FOR RESPONDENT IN RESPONSE TO
AMICI CURIAE SUBMISSIONS
CYRUS R. VANCE, JR.
District Attorney
New York County
Attorney for Respondent
One Hogan Place
New York, New York 10013
(212) 335-9000
danyappeals@dany.nyc.gov
ALAN GADLIN
SUSAN AXELROD
Assistant District Attorneys
Of Counsel
January 20, 2017
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .............................................................................................. ii
INTRODUCTION................................................................................................................ 2
POINT I
THE PEOPLE OBTAINED SEARCH
WARRANTS FOR THE TARGET
ACCOUNTS, AND FACEBOOK HAS
NEITHER A STATUTORY NOR
CONSTITUTIONAL RIGHT TO RAISE
FOURTH AMENDMENT CLAIMS ON
BEHALF IF ITS USERS. ....................................................... 3
POINT II
THERE IS NO BASIS FOR THIS COURT
TO ORDER TRIAL COURTS TO RETAIN
SEARCH WARRANT AFFIDAVITS. .............................. 11
CONCLUSION ................................................................................................................... 13
-ii-
TABLE OF AUTHORITIES
FEDERAL CASES
Groh v. Ramirez, 540 U.S. 551 (2004) .................................................................................... 7
In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and
Maintained by Microsoft Corp v. United States, 829 F.3d 197 (2d Cir. 2016) ............. 5-6, 8
Molzof v. United States, 502 U.S. 301 (1992) .......................................................................... 5
STATE CASES
Anderson v. Taylor, 149 P.3d 352 (S.Ct. Utah 2006) ........................................................... 11
In the Matter of 381 Search Warrants Directed to Facebook, Inc. v. New York
County District Attorney's Office, 132 A.D.3d 11 (1st Dept. 2015) .................................. 7
Matter of Cunningham v. Nadjari, 39 N.Y.2d 314 (1976) ....................................................... 3
Matter of Newsday v. Morgenthau, 3 N.Y.3d 651 (2004) ......................................................... 4
Patrolmen's Benevolent Association v. New York, 41 N.Y.2d 205 (1976) ............................... 12
People v. Galland, 197 P.3d 736 (S.Ct. Cal. 2008) ................................................................ 11
People v. Marin, 86 A.D.2d 40 (2d Dept. 1982) ................................................................. 3-4
FEDERAL STATUTES
18 U.S.C. §2703(d) ............................................................................................................... 6-8
18 U.S.C. §2703(e) .................................................................................................................. 9
18 U.S.C. §2703(g) ........................................................................................................... 4-5, 9
18 U.S.C. §2707....................................................................................................................... 9
42 U.S.C. §1983....................................................................................................................... 7
STATE STATUTES
Criminal Procedure Law §690.36(3) ................................................................................... 12
Criminal Procedure Law §700.55(1) ................................................................................... 12
-iii-
Criminal Procedure Law Article 690 .................................................................................. 12
Criminal Procedure Law Article 700 .................................................................................. 12
COURT OF APPEALS
STATE OF NEW YORK
In re 381 Search Warrants Directed to Facebook Inc.,
and Dated July 23, 2013,
FACEBOOK, INC.,
Appellant,
-against-
NEW YORK COUNTY DISTRICT ATTORNEY'S
OFFICE,
Respondent.
In the Matter of the Motion to Compel Disclosure of
the Supporting Affidavit Relating to Certain Search
Warrants Directed to Facebook, Inc., Dated July 23,
2013,
FACEBOOK, INC.,
Appellant,
-against-
NEW YORK COUNTY DISTRICT ATTORNEY'S
OFFICE,
Respondent.
-2-
BRIEF FOR RESPONDENT IN RESPONSE TO AMICI CURIAE
SUBMISSIONS
INTRODUCTION
Pursuant to Rule 500.12(f) of this Court, the People of the State of New York
respectfully submit this response to five briefs filed in support of appellant by the
following sets of institutions: the Brennan Center for Justice, Electronic Frontier
Foundation, Access Now, and Techfreedom ("the Brennan Center"); Foursquare
Labs, Inc., Kickstarter, PCB, Meetup, Inc., and Vimeo, Inc. ("Foursquare"); former
New York County District Attorneys ("former ADAs"); the New York Civil Liberties
Union, the American Civil Liberties Union, the New York State Association of
Criminal Defense Lawyers, and the Center for Democracy and Technology
("NYCLU"); and Amazon.com, Inc., Apple Inc., Box, Inc., Dropbox Inc., Google
Inc., Microsoft Corporation, Mozilla Corporation, Nest Labs, Inc., Niantic, Inc.,
Pinterest, Inc., Red Hat Inc., Reddit, Inc., Snap Inc., and Twitter Inc. ("Amazon"), as
amici curiae.
These groups join appellant in asking this Court to conclude that Facebook is
entitled to raise the Fourth Amendment rights of its users on their behalf by making a
pre-execution motion to quash a search warrant. Some of these groups are also
asking this Court to find that the trial court's protective order preventing Facebook
temporarily from notifying the account holders of the warrants' issuance violated
Facebook's First Amendment rights. Lastly, several of these groups join in
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Facebook's claim that both the First Amendment and common law entitled it to view
the affidavit once the court issued its limited unsealing order. The People's response
focuses on the claims raised by these groups in connection with Facebook's pre-
execution motion to quash the warrant and the request made by the NYCLU, as part
of its argument that the affidavit be made publicly available, that this Court order
lower courts in New York state to retain copies of warrant affidavits. None of the
arguments raised withstand scrutiny.
POINT I
THE PEOPLE OBTAINED SEARCH WARRANTS
FOR THE TARGET ACCOUNTS, AND FACEBOOK
HAS NEITHER A STATUTORY NOR
CONSTITUTIONAL RIGHT TO RAISE FOURTH
AMENDMENT CLAIMS ON BEHALF IF ITS USERS.
With the exception of Amazon, none of the amici directly address the fact that
Facebook is seeking to appeal from a non-appealable order. Amazon mistakenly
claims that New York courts have created an exception to the Criminal Procedure
Law to permit appeals "when the interlocutory order affects a third party to the
criminal action" and cites to People v. Marin, 86 A.D.2d 40 (2d Dept. 1982), for support
(Amazon at 22). Marin, however, lends them no aid. There, a law firm was appealing
from the trial court's denial of its motion to quash a subpoena for notes it took of
certain witnesses in the criminal case. In permitting the appeal to go forward, the
Second Department simply relied on the well-settled rule, articulated in Matter of
Cunningham v. Nadjari, 39 N.Y.2d 314 (1976), that the denial of a motion to quash "a
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subpoena issued in the course of a criminal investigation, whether entered by a court
possessing both criminal and civil jurisdiction, or by a court possessing criminal
jurisdiction only, is a final and appealable order." 86 A.D.2d at 42. Here, the People
obtained search warrants for the information sought, and neither defendants nor third
parties may appeal from interlocutory orders issued in connection with those types of
processes. See Matter of Newsday v. Morgenthau, 3 N.Y.3d 651 (2004).
As to the other amici, they simply ignore this bar to review and press their
claims that Facebook was, and must be, entitled to raise the Fourth Amendment
claims of its users, even before the warrants are executed. They insist that any other
rule would result in significant privacy violations for users of on-line services and
would deter them from freely expressing their ideas in the digital world. To support
their assertions that new rules should apply in the arena of the internet, several of the
amici focus on 18 U.S.C. §2703(g) of the Stored Communications Act ("SCA"), which
provides that an officer need not be present during the search, and thus endorses
execution of the warrant by the service provider (Amazon at 11-12; Foursquare at 9).
Amici insist that this provision makes these warrants significantly different from
traditional warrants, and that, by placing the responsibility for execution with the
service provider, the SCA renders it imperative that a service provider be able to make
motions to quash on constitutional grounds before SCA warrants are executed.
The Second Circuit has recently squarely rejected the argument that 18 U.S.C.
§2703(g) somehow renders an SCA-compliant search warrant something other than a
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search warrant. In In the Matter of a Warrant to Search a Certain E-Mail Account Controlled
and Maintained by Microsoft Corp v. United States, 829 F.3d 197 (2d Cir. 2016), the
magistrate judge had concluded that 18 U.S.C. §2703(g) rendered SCA-compliant
search warrants some sort of "hybrid" warrant-subpoena so that traditional
prohibitions on extraterritorial uses of search warrants were inapplicable. In rejecting
the district court's reasoning, the Second Circuit stressed that Congress specifically
used the term "warrant" in the SCA, and that under rules of statutory construction,
"when Congress employs a term of art, 'it presumably knows and adopts the cluster of
ideas that were attached to each borrowed word in the body of learning from which it
was taken.'" Id. at 212, citing Molzof v. United States, 502 U.S. 301, 307 (1992). Thus,
when Congress required the government to obtain a warrant, it intended to hew to "a
legal lineage that is centuries old," in which the government made an application to a
neutral and detached magistrate who could issue the warrant only upon a conclusion
that the application established probable cause. Id. at 212.
The Court went on to explain that
The law of warrants has long contemplated that a private
party may be required to participate in the lawful search or
seizure of items belonging to the target of an investigation.
When the government compels a private party to assist it in
conducting a search or seizure, the private party becomes
an agent of the government, and the Fourth Amendment's
warrant clause applies in full force to the private party's
actions. The SCA's warrant provisions fit comfortably
within this scheme by requiring a warrant for the content
of stored communications even when the warrant
commands a service provider, rather than law enforcement
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officer, to access the communications. Use of this
mechanism does not signal that, notwithstanding its use of
the term "warrant," Congress intended the SCA warrant
procedure to function like a traditional subpoena.
Id. at 213 (citations omitted).
In other words, SCA warrants are warrants, and all the rules pertaining to
traditional warrants apply. As discussed in detail in respondent's brief, under those
traditional rules, only post-execution Fourth Amendment challenges may be brought to
warrants in criminal matters. Even then, challenges can be brought only by those
actually aggrieved, i.e. criminal defendants whose privacy rights were violated and
against whom evidence will be introduced at trial. Moreover, the Second Circuit's
rejection of the magistrate judge's reasoning reinforces the conclusion that SCA
search warrants are not, in some sense, subpoenas. That defeats attempts by the amici
to invoke New York's special appealability rules for subpoenas.1 The attempts of
1 Several amici point to the Second Circuit's decision in Microsoft for support of their
claim that Facebook should be permitted to appeal from the trial court's decision to the
appellate courts of New York state (NYCLU at 9; Amazon at 20). However, whatever the
rules for appellate practice may be in federal court, they do not apply to the rules in New
York state; as discussed in our main brief, those rules preclude appellate review of
Facebook's claims both before the Appellate Division and this Court. Additionally,
Microsoft agreed to be held in contempt in order for the Second Circuit to invoke its
appellate jurisdiction, see 829 F.3d at 212, fn. 9, and Facebook chose to avoid such a sanction
by complying with the search warrant. Lastly, on the merits of the claim, Microsoft was not
attempting to defend the constitutional privacy rights of its users, as Facebook does. Rather,
it was arguing that the federal judge did not have jurisdiction to issue a warrant compelling it
to search for information in a foreign jurisdiction. Such a contention certainly comes within
the "undue burden" provision of 18 U.S.C. §2703(d) of the SCA, and thus Microsoft could
properly raise it pre-execution.
-7-
amici to convince this Court to read the SCA as providing for other avenues of attack
on Fourth Amendment warrants must fail.2
Precisely because the People obtained a warrant, amici's insistence that privacy
protections will simply be eroded unless Facebook is permitted to make pre-execution
motions to quash warrants on behalf of its users are simply not valid (see, e.g., Brennan
Center Brief; Foursquare at 6; NYCLU at 10). Foursquare cites to a statement in the
First Department's decision that, in the on-line world, the Fourth Amendment's
protections are "potentially far weaker" than in the physical world. In the Matter of 381
Search Warrants Directed to Facebook, Inc. v. New York County District Attorney's Office, 132
A.D.3d 11, 21 (1st Dept. 2015) (Foursquare at 21; see also Brennan Center at 3). In
fact, though, that court went on to state that it was for that reason that the SCA
2 Both Foursquare and NYCLU discuss the importance of permitting a service
provider to move to quash a warrant pre-execution in order to protect its own rights.
Foursquare notes that corporations have Fourth Amendment privacy protections. NYCLU
asserts that "the United States Supreme Court has dictated that law enforcement cannot
impose unreasonable burdens on third parties by requiring their assistance," and that
Facebook must therefore be able to bring some challenges concerning the reasonableness of
the order (Foursquare at 6-7; NYCLU at 7-8). These discussions are irrelevant, as Facebook
has never protested that complying with the order was unduly burdensome for it or violated
its Fourth Amendment rights. Beyond that, the SCA does, in fact, permit a service provider
to protest that the warrant's request for materials is "unusually voluminous" or that
compliance would cause an "undue burden" on the provider. 18 U.S.C. §2703(d).
Foursquare is correct that, in the instant case, Facebook could not raise a claim before the
criminal court that its Fourth Amendment right had been violated, as it was not a defendant
in the related matter. If Facebook believes that its own privacy rights were in some way
violated, the fact that it was not a criminal defendant does not prevent it from seeking
redress under 42 U.S.C. §1983. That is the usual remedy for those never subject to
prosecution who nevertheless wish to press a Fourth Amendment claim. See Groh v. Ramirez,
540 U.S. 551 (2004).
-8-
"created Fourth Amendment-like privacy protections for email and other digital
communications stored on the internet," by limiting the government's access to that
information unless certain processes are utilized, including warrants. Id.
By obtaining warrants for the information in the Facebook accounts, the
People "complied with the most restrictive privacy-protecting requirements of the
Act," which are also the requirements "consistent with the highest level of protection
ordinarily required by the Fourth Amendment. . . ." Microsoft, 829 F.3d at 223 (Lynch
J., concurring). Thus, the Facebook account holders have already received the highest
degree of privacy protections available. Indeed, Facebook and the amici simply ignore
the "importance of the warrant" itself in "constrain[ing] the power of the government
. . . " Id. at 212. The fact that both the Criminal Procedure Law and the state and
Federal constitutions bar Facebook from litigating those rights on the behalf of these
targeted account holders does not change that fact or weaken those protections.
Amazon raises two other claims that must be addressed. First, Amazon argues
that there must be some means for challenging warrants given the fact that digital data
is often stored in different platforms and different servers, rendering it difficult to
access, and that law enforcement will sometimes ask for information that does not
exist or cannot be obtained using a provider's existing systems (Amazon at 13). Once
again, the SCA does permit a service provider to raise complaints that the materials
requested by the warrant are "unusually voluminous" or that fulfilling the request
would cause an "undue burden" on the provider. 18 U.S.C. §2703(d). Thus, providers
-9-
do have avenues by which to protest that the requests for information are so
procedurally difficult to fulfill as to be unreasonable. And, of course, if the
information does not exist, then the service provider fulfills the warrant by informing
the law enforcement agency of that fact.
Amazon next turns to 18 U.S.C. §2707, which permits an aggrieved person to
sue civilly for violations of the SCA, and argues that this section of the SCA is further
proof that Congress intended the service provider to be able to challenge the
constitutionality of SCA warrants pre-execution (Amazon at 11). That statute
provides, as a complete defense to such a law suit, a "good faith reliance" on a "court
order or warrant," §2707(e)(1). Amazon reasons that a service provider does not act
in "good faith" if it discloses information pursuant to what it believes to be an invalid
warrant. Consequently, Amazon insists, a provider must be permitted to assure itself
that the warrant does indeed pass Fourth Amendment muster by challenging it in
court, so it can then either be freed of the need to comply with the warrant or avail
itself of this defense (Amazon at 15). Such an interpretation of this provision would
effectively constitute an end-run around well-established Fourth Amendment
principles regarding standing and the bar to pre-execution challenges to warrants.
Had Congress intended such a result, it certainly would have made that clear, as it did
when it permitted a limited class of pre-execution claims under §2703(g).
That Amazon is misinterpreting 18 U.S.C. §2707 is clear from 18 U.S.C.
§2703(e). Under that SCA provision:
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No cause of action shall lie in any court against any
provider of wire or electronic communication service, its
officers, employees, agents, or other specified persons for
providing information, facilities, or assistance in accordance
with the terms of a court order, warrant, subpoena,
statutory authorization, or certification under this chapter
[18 USCS §§ 2701 et seq.].
This statute, which relieves a service provider from liability for a search so long as that
search is conducted pursuant to a warrant, does not require that the service provider
act in "good faith;" rather it mandates only that provider acted "in accordance" with
the directions in the order. These two statutes, taken together, make clear that the
service provider must simply ensure that it is acting in accordance with the warrant in
order to be acting in "good faith" and thus be immune from civil liability; it need not
be of the belief that the warrant satisfies all substantive Fourth Amendment
requirements.
In sum, as the legal analyses of the four amici raising these claim are incorrect,
their calls for a ruling permitting pre-execution motions to quash warrants by service
providers on behalf of their users must be rejected.
-11-
POINT II
THERE IS NO BASIS FOR THIS COURT TO ORDER
TRIAL COURTS TO RETAIN SEARCH WARRANT
AFFIDAVITS.
In its amicus filings, the NYCLU asks this Court to "instruct" the lower courts
to retain copies of the warrant applications (NYCLU at 20). Amicus asserts that the
New York courts, unlike their federal counterparts, are not uniform in whether they
retain these types of documents, and so urges this Court to step in and "order" all the
lower courts to maintain these applications (NYCLU at 23). This request must be
rejected.
To begin, Facebook, the actual party seeking relief, has not asked this Court for
such an order. Facebook has limited its request to disclosure of this particular warrant
affidavit and has not gone beyond that. Moreover, amicus fails to explain precisely
how this Court would have the authority to issue such an order. To be sure, amicus
does turn to courts in two other jurisdictions and states that they have "invalidated
such routine failures to maintain copies of warrant application materials" (NYCLU at
21). But, in both those cases, the courts examined the applicable statutes and
determined that they, in fact, mandated that the issuing courts retain the affidavits.
People v. Galland, 197 P.3d 736 (S.Ct. Cal. 2008) (discussing how California's statutes
require that warrant affidavits be maintained by courts unless safety considerations
dictate that they be retained by law enforcement agencies); Anderson v. Taylor, 149 P.3d
352 (S.Ct. Utah 2006) (finding that Utah's statutory provisions require magistrates to
-12-
retain copies of search warrant affidavits and exercising supervisory power to ensure
compliance with those statutes).
Article 690 of New York's Criminal Procedure Law simply does not include
such a requirement in connection with search warrants, with one exception. As amicus
notes (NYCLU at 22), pursuant to CPL §690.36(3), when an application is made
orally, the application must be transcribed and the judge must certify its accuracy and
then file the original record and transcription with the court within 24 hours of the
application. But, because this provision by its express terms is limited to oral
applications, it actually undermines amicus's underlying claim that the Legislature
therefore intended that courts retain copies of all warrant applications.
Article 700 of the Criminal Procedure Law governing eavesdropping
surveillance also requires courts to retain oral applications. §700.21(3). Critically,
when the warrant is obtained by way of a written application, CPL §700.55(1)
specifically directs the issuing judge to retain a copy of the warrant and "all original
papers upon which the application was based." That the Legislature included no
equivalent language in the search warrant statute demonstrates that it did not intend
for judges issuing search warrants to retain the affidavits. See Patrolmen's Benevolent
Association v. New York, 41 N.Y.2d 205 (1976) (a fundamental tenet of statutory
construction is that what is omitted or not included was intended to be omitted or
excluded). Such a critical omission is fatal to amicus's cause.
In sum, in the absence of any authority to effectuate amicus's suggestion
concerning judicial retention of search warrant applications, there is no basis to adopt
it.
CONCLUSION
Facebook's appeal must be dismissed.
ALANGADLIN
SUSAN AXELROD
Assistant District Attorneys
Of Counsel
January 20, 2017
Respectfully submitted,
CYRUS R. VANCE,JR.
District Attorney
New York County
BY:k /lk
cSUSAN AXELROD
Assistant District Attorney
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