APL 2015-003 18
New York County Clerk's Index Nos. 30207/13 & 301 7811 4
Otnurt of App.eals
of the
~tate of N.ew fork
In rc 3 81 Search Wan·ants Directed to Facebook, Inc. and Dated July 23, 20 13,
F ACEBOOK, INC.,
Appellant,
against
NEW YORK COUNTY OISTRlCT ATTORNEY'S OFFICE,
Respondent.
In the Matter of the Motion to Compel Disclosure oflhc Supporting Affidavit
Relating to Certain Search Warrants Directed to facebook, Inc.,
Dated July 23,2013
r.i\CEBOOK, INC.,
Appellant,
- against -
NEW YORK COUNTY DISTRIC..I ATTORNEY'S OFFICE,
Respondent.
BRIEF OF SEVERAL FORMER NEW YORK COUNTY
ASSIST ANT DJSTRJCT ATTORNEYS AS AMICUS CURIAE
Of Counsel:
H ELEN V. C ANTWF.lJ.
I ARROD L. SCI lAEFFER
LJ\URA J. SAMUELS
Date Completed: December 30,2016
DEBEVOlSI: & PLIMPTON LLP
Attorneys for Saveral Former New
York County Assistant District
Attorneys
919 Third Avenue
New York, New York I 0022
Tel. : (212) 909-6000
Fax: (212) 909-6836
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TABLE OF CONTENTS
Table of Authorities ............................................. ........... ......................................... iv
PRELIMINARY STATEMENT ............................................................................... 1
BACKGRO~D ....................................................................................................... 2
ARGUMENT ................................................................................... .... ................. .... 5
Restricting Access to the Affidavit Setting Forth the Probable Cause
Underlying an Unsealed Search Warrant after Execution of the
Wan·ant Is Contrary to Settled Law and Practice in New York ..................... 5
A. New York Law Presumes Public Access to an Affidavit
Underlying an Unsealed Search Warrant following Execution
of the Warrant. ...................................................................................... 6
1. Withholding an Unsealed Affidavit following Execution
of a Search Warrant Is Contrary to Settled Law and
Practice in New York ...................................................... ....... .... 7
2. Federal Law Is Consistent with New York's
Understanding of the Common Law Right of Access to
Search Warrants and Supporting Documents ............................ 9
3. New York Law Provides Adequate Protections Where
Law Enforcement Concerns Require Continued
Confidentiality .......................................................................... 10
B. No Legitimate Law Enforcement Interest Justifies Denying
Access to the Search Warrant Affidavit at This Stage ....................... 13
Public Access to an Unsealed Affidavit That Establishes the Probable
Cause Underlying Search Warrants, after the Execution of Those
Warrants and the Conclusion of the Investigation, Promotes Public
Confidence in the Transparency and the Integrity of the Criminal
Justice System .......................................................................................... ..... 16
A. Public Access to Search Warrant Affidavits Benefits the Public
Interest. .. . . .. . .. .. .. . .. .. .. . .. .. .. . .. . . . . . .. . . . . . .. . . .. . .. . . . . . .. . .. . . .. . . .. . .. . . .. . .. . . .. . .. . . .. . .. . . 16
B. Public Access to the Unsealed Affidavit in This Case Promotes
the Perceived Legitimacy of the Criminal Justice Process ................ 18
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CONCLUSION ....................................................................................................... 23
CERTIFICATE OF COMPLIANCE ................................................ ...................... 24
- lll -
TABLE OF AUTHOJUTIES
CASES
Application ofNewsday, Inc., 895 F.2d 74 (2d Cir. 1990) .......... .. .................. 10, 12
Butterworth v. Smith, 494 U.S. 624 (1990) ............ .. ............ .. ............... ............. ..... .15
In reApplication of NY Times Co. for Access to Certain Sealed Court
Records, 585 F. Supp. 2d 83 (D.D.C. 2008) ...................................................... .1 2
In re Baltimore Sun Co., 886 F.2d 60 (4th Cir. 1989) ............................................. 12
In re John Doe Partnership, 145 Misc. 2d 783 (N.Y. Sup. Ct, 1989) ............ ........ .18
In reSealed Search Warrant, No. 04-M-370 DRH, 2006 WL 3690639
(N.D.N.Y. Dec. 11, 2006) .............................. ..................................................... 10
Maryland v. Garrison, 480 U.S. 79 (1987) ............... ..... ....... ................................... 20
Nebraska Press Ass 'n v. Stuart, 427 U.S. 539 ( 1976) (BreliDan, J.,
concurring) .......................................................................................................... 16
Newsday, Inc. v. Sise, 71 N.Y.2d 146 (1987) ........................................................ 6, 7
Nixon v. Warner Commc 'ns, Inc., 435 U.S. 589 (1978) ...................................... 7, 16
People v. Brown, 96 N.Y.2d 80 (2001) ................................................................... .17
People v. Burton, 189 A.D.2d 532 (3d Dep't 1993) ............................... 8, 10, 11, 16
People v. Macedonia, 51 Misc. 3d 1219(A), 2016 WL 2616995 (N.Y. Sup.
Ct. 2016) ............................................................................................................ 6, 8
People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986) ................................. .................. .19
People v. Weaver, 12 N.Y.3d 433 (2009) ......................................................... 19, 20
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ................................ 21
Stanford v. Texas, 379 U.S. 476 (1965) ................................................................... 20
United States v. All Funds on Deposit at Wells Fargo Bank in San
Francisco, Ca., 643 F. Supp. 2d 577 (S.D.N.Y. 2009) ...................................... 10
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United States v. A ref, 533 F .3d 72, 83 (2d Cir. 2008) ... .... ............. ..... ...... ............. 21
United States v. Bus. of Custer Battlefield Museum & Store Located at
Interstate 90, Exit 514, S. of Billings, Mont., 658 F.3d 1188 (9th Cir.
2011) ................................................................................................................... 12
United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) ............................................ 19
Zurcher v. Stanford Daily, 436 U.S. 547 (1978) ..... .. .............................................. 20
STATUTES
18 u.s.c. § 2703(b) ............................................................................................... 2, 3
C.P.L. § 240.50(1 ) .......................................... .......................................................... 11
C.P.L. § 240.50(2) ... .... ........................... ........................................................... 13, 14
OTHER AUTHORITIES
4 N.Y. SEARCH & SEIZURE§ 4.02(7)(b) (2016) ................................................... 8, 11
David Horan, Breaking the Seal on White-Collar Criminal Search Warrant
Material, 28 PEPP. L. REv. 317, 325 (200 1) ........................................................ 17
Erica A. Kaston, The Expanding Right of Access: Does It Extend to Search
Warrant Affidavits?, 58 FORDHAM L. REV. 655, 671 (1990) ............................. .18
Lynn B. Oberlander, A First Amendment Right of Access to Affidavits in
Support of Search Warrants, 90 COLUM. L. REV. 2216, 2237 (1990) ................ 18
Peter G. Blumberg, Sunshine and Ill Wind: the Forecastfor Public Access to
Sealed Search Warrants, 41 DEPAULL. REv. 431,453- 54 (1992) .................... 19
Press Release, N.Y. County District Attorney's Office, DA Vance: 106
Defendants, including 80 NYPD and FDNY Retirees, indicted in Social
Security Disability Fraud Costing Federal Taxpayers Hundreds of
Millions (Jan. 7, 2014), available at http://manhattanda.org/press-
release/ da-vance-1 06-defendants-including -80-nypd-and-fdny-retirees-
indicted-social-security-d .................... ..... ........... ........ .. ......... ... ............................ 3
-v-
PRELIMINARY STATEMENT
This case presents important questions about the New York County District
Attorney's use of search warrants to obtain broad categories of electronically
stored information about a large number of social network users - information
that includes personal, professional, recreational, and political data that many
people would view as private and subject to restrictions on sharing - without
disclosing the documents or factual basis on which a court relied to issue those
warrants. Amici, all of whom have previously served in the New York County
District Attorney's office as Assistant District Attorneys, respectfully submit this
brief in support of the arguments raised before this Court by Appellant Facebook,
Inc. ("Facebook").1 Contrary to the arguments advanced on appeal by Respondent
(the "District Attorney"), continued secrecy surrounding the unsealed - and yet
undisclosed- affidavit establishing probable cause for the issuance of 381 search
warrants disregards established New York criminal law and practice, fails to
advance any legitimate law enforcement interest, and undermines public
confidence in the transparency and integrity of the criminal justice system.
Counsel for amici states that no counsel for any party authored this brief, in
whole or in part, and that no person other than amici or their counsel made a
monetary contribution toward the preparation or submission of this brief.
BACKGROUND
As recounted more completely in the parties' merits briefing, the search
warrants at issue in this case were obtained and executed in the course of an
investigation into disability fraud committed by retired public employees
conducted by the District Attorney in 2013. In furtherance of that investigation,
the District Attorney applied to the trial court for 381 search warrants targeting
vast swaths of electronic information about hundreds of users from Facebook.
(A59-A62.) The warrants themselves were exceedingly broad in scope, seeking,
inter alia, any and all "subscriber and account information," "user contact
information," "account status history," "undeleted or saved photos," group
membership infmmation, "public or private messages," "friend requests," "chat
history," event information, and location data for 381 Facebook users. (A59-60.)
In support of its applications for those warrants, the District Attorney submitted to
the trial court under seal a single 93-page affidavit (the "Affidavit"). (A33.)
On July 23, 2013, the trial court (Jackson, J.) found that the Affidavit
established probable cause and issued the search warrants sought by the District
Attorney. (A33, A59-62.) Facebook duly complied with the warrants. Notably,
the search warrants all contained a provision stating that, "pursuant to 18 U.S.C.
§ 2703(b )," Face book was directed not to "notify or otherwise disclose the
existence or execution of th[ e] warrant/order to any associated user/account holder
-2-
.... " (A61-62.) As such, Facebook was required to turn over to the District
Attorney a large quantity of personal data about 381 individuals who were not
notified that they were the subject of a governmental investigation. The disability
fraud investigation did become public knowledge by January 7, 2014, when it was
announced to the media by the District Attorney.2 Following the completion of the
District Attorney's investigation, the grand jury issued indictments against 62 of
the 381 individuals whose data was seized pursuant to the search warrants.
On June 23, 2014, the District Attorney moved to unseal the search warrants
and supporting documents. (See A212.) Finding that the District Attorney had
made "a detailed and sufficient factual showing of a particularized need for this
disclosure," and that "disclosure of the aforesaid search warrants would be in the
public interest and an appropriate exercise of th[e] Court's discretion," the trial
court ordered that "the July 23, 2013 search warrants, and the supporting affidavit
... and the relevant litigation and decisions, including any and all fillings made by
Facebook, Inc. and the [District Attorney], and any and all decisions by Justice
Jackson and the Appellate Division, First Department be unsealed." (/d.) The trial
2 See, e.g., Press Release, N.Y. County District Attorney's Office, DA Vance: 106
Defendants, Including 80 NYPD and FDNY Retirees, Indicted in Social Security
Disability Fraud Costing Federal Taxpayers Hundreds of Millions (Jan. 7, 2014),
available at http://manhattanda.org/press-release/da-vance-1 06-defendants-
including-80-nypd-and-fdny-retirees-indicted-social-security-d.
- 3 -
court's unsealing order did not prescribe any limitations regarding either the
material to be unsealed or the conditions under which it could be shared with the
public. (See A212-13.)
All of the actions described above were consistent with the constitutional
and statutory protections accorded criminal defendants, legitimate law enforcement
goals of investigating and prosecuting crimes, reasonable concerns for the
preservation and confidentiality of evidence and other information during the
'Pendency of an investigation, and routine practice in New York's criminal comts.
What the District Attorney did next, however, was extraordinary. Despite the fact
that, at the District Attorney's request, the trial court ordered that the Affidavit be
unsealed, the District Attorney refused to disclose the Affidavit to Facebook -
even though the District Attorney and Facebook continued to litigate the
constitutionality of the search warrants in the Appellate Division. (See generally
Al91, A218-21, A224-27.)
On August 13, 2014, the trial court denied a motion by Facebook to compel
production of the Affidavit, holding that (i) Facebook did not have standing to seek
disclosure of the Affidavit; (ii) the Affidavit was not part of the public record;
(iii) the unsealing of the Affidavit had been effected only for limited purposes;
(iv) the Affidavit remained in use in a pending criminal proceeding; (v) unsealing
the Affidavit did not mandate its disclosure to the public; (vi) "disclosure at this
-4-
juncture would negatively impact the privacy rights of the individuals named in the
Affidavit who were never indicted in [the pending criminal matter] yet are named
in the Affidavit"; and (vii) the District Attorney could theoretically provide the
Affidavit to the Appellate Division if that court requested to review the Affidavit in
the course of deciding Facebook's appeal. (See A38-40.) The trial court noted,
however, that it "assumed that once the Affidavit [wa]s disclosed to the
defendants" in the pending criminal matter, it would then be made available to the
public. (A39.)
ARGUMENT
RESTRICTING ACCESS TO THE AFFIDAVIT SETTING FORTH
THE PROBABLE CAUSE UNDERLYING AN UNSEALED SEARCH
WARRANT AFTER EXECUTION OF THE WARRANT IS
CONTRARY TO SETTLED LAW AND PRACTICE IN NEW YORK
The District Attorney asserts on appeal that it is under no duty or obligation
to disclose the Affidavit to the public because it is not a public document and was
unsealed for only limited purposes. That position flies in the face of settled New
York criminal law and practice, is not justified by any legitimate law enforcement
interest, and will undercut public confidence in the transparency and integrity of
the criminal justice system. Further, permitting the District Attorney to withhold
the Affidavit indefinitely from disclosure would prevent members of the public
from ever viewing the sole document on which a court relied to find probable
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·.
cause justifying the collection of massive amounts of digital information from over
300 New Yorkers who have never been charged with any crime.
While legitimate concerns about public safety or the integrity of an ongoing
investigation may sometimes require that records such as the Affidavit remain
sealed for a specified period, New York law provides adequate protections in cases
presenting special concerns. Here, no law enforcement interest justifies the
District Attorney's unilateral and extraordinary decision to withhold from public
view - and even from reviewing appellate courts - the document considered and
relied upon by the trial court to adjudicate New Yorkers' rights against
unreasonable searches and seiZUres. New York law does not countenance the
District Attorney's refusal to disclose the Affidavit and this lack of transparency
threatens to undermine public faith in the criminal justice process.
A. New York Law Presumes Public Access to an Affidavit
Underlying an Unsealed Search Warrant following Execution of
the Warrant.
The District Attorney's arguments on appeal are inconsistent with settled
New York common law recognizing a broad right of access to judicial records.
See, e.g., Newsday, Inc. v. Sise, 71 N.Y.2d 146, 153 n.4 (1987), People v.
Macedonia, 51 Misc. 3d 1219(A), 2016 WL 2616995, at *8 (N.Y. Sup. Ct. 2016)
(finding that "[p]ublic records such as a filed search warrant" were "subject to the
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common-law right of access to court records" that "predates our constitution"
(internal quotation marks and citations omitted)). As recognized by the United
States Supreme Court, this long-standing right creates a firm background
presumption that the public is allowed to "inspect and copy public records and
documents, including judicial records and documents." Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 (1978); see also Newsday, Inc., 71 N.Y.2d at
153 n.4. The strong presumption of access to those records sweeps broadly to
accommodate "a citizen's desire to keep a watchful eye on the workings of public
agencies," Nixon, 435 U.S. at 597-98 (internal citations omitted), and is not
contingent even "upon a need for it as evidence in a lawsuit," Jd.
1. Withholding an Unsealed Affidavit following Execution of a
Search Warrant Is Contrary to Settled Law and Practice in
New York.
The District Attorney's assertion that the Affidavit is not a public document
and is forever beyond public view runs afoul of the public's common law right of
access. Indefinitely withholding the Affidavit from public scrutiny is inconsistent
with that right because, following the conclusion of the District Attorney's
investigation and the filing of the District Attorney's motion to unseal the search
- 7-
warrant and supporting documents (see A212),3 the Affidavit became a judicial
record subject to public review. The District Attorney's arguments on appeal
ignore this fundamental background rule, however, and unlawfully seek to place
the burden on Facebook and the public to justify disclosure of the Affidavit.
New York law has clearly established procedures governing the disclosure
of information contained in search warrants and supporting documents. Once
filed, a search warrant and underlying documents generally remain sealed until the
warrant has been executed. See 4 N.Y. SEARCH & SEIZURE § 4.02(7)(b) (2016).
Consistent with the public's common law right of access, however, after an arrest
is made, a prosecutor will move to unseal the warrant application. Jd. Absent a
request by the prosecutor for a protective order or to redact certain information in
cases where information remains sensitive due to some special law enforcement
interest, the court will unseal the records. ld. Once the documents are unsealed,
they become available to the public as judicial records open for inspection. See
People v. Burton, 189 A.D.2d 532, 535-36 (3d Dep't 1993) (granting newspaper
access to documents in court file upon reversal of order to seal the documents);
Macedonia, 2016 WL 2616995, at * 12 ("[T]he Court will unseal the search
3 Ironically, the District Attorney's motion to unseal the search warrant also is
not publically available, nor was it included as part of the appendix submitted
by the parties.
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warrant application with the sole exception of those items listed above. The Court
will redact the document in question and the redacted search warrant application
will be made available for public inspection.").
It is simply not the case that the District Attorney may unilaterally decide to
withhold from public scrutiny the sole document submitted in support of the
applications for 381 search warrants once the warrants have been executed, the
District Attorney's investigation has ended, and indictments have been issued.
Contrary to the trial court's description, the Affidavit is not merely a "non-sealed
document in the prosecutor's file," (A39), it is a crucial judicial record implicating
citizens' rights to be free from unreasonable searches and seizw·es. Permitting the
District Attorney to claim and exercise such enormous discretion with respect to
the formal court documents used to adjudicate this important public right is
contrary to the background rule long recognized under New York law and
respected by countless prosecutors and is inconsistent with the role prosecutors
play in our criminal justice system.
2. Federal Law Is Consistent with New York's Understanding
of the Common Law Right of Access to Search Warrants
and Supporting Documents.
New York state courts have looked to federal law as informing the
substantive and procedural contours of this common law presumption, see, e.g.,
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Burton, 189 A.D.2d at 535- 36, and federal courts in New York and elsewhere have
concluded that the right to access and inspect judicial records applies to search
warrant documents once the warrant has been executed. Courts in the Second
Circuit, for instance, have found that applications made in connection with search
warrants "clearly fall within the definition of judicial documents" because they are
''central to a court's probable cause determination." United States v. All Funds on
Deposit at Wells Fargo Bank in San Francisco, Ca., 643 F. Supp. 2d 577, 583-84
(S.D.N.Y. 2009) (internal quotation marks omitted). "[T]he fact that search
warrants are commonly filed under seal until the wanant is executed does not
change their status as public documents," Application of Newsday, Inc., 895 F.2d
74, 79 (2d Cir. 1990), and the common law presumption of access "carries the
maximum possible weight" because wanant application materials are integral to
the adjudication of Fourth Amendment rights. In reSealed Search Warrant, No.
04-M-370 DRH, 2006 WL 3690639, at *3 (N.D.N.Y. Dec. 11, 2006).
3. New York Law Provides Adequate Protections Where Law
Enforcement Concerns Require Continued Confidentiality.
In special cases where continued nondisclosure is necessary to safeguard a
legitimate law enforcement interest, New York law provides adequate protections
for confidential or sensitive information. As a practical matter, a prosecutor may
simply wait to move to unseal a search wanant and any supporting documents until
- 10-
secrecy is no longer necessary. And when such records are unsealed and made
available to the public, the District Attorney may file for a protective order to
prevent the disclosure of sensitive information. See N.Y.C.P.L. § 240.50(1) ("The
court in which the criminal action is pending may, upon motion of either party .. .
issue a protective order denying, limiting, conditioning, delaying or regulating
discovery pursuant to this article for good cause, including . . . an adverse effect
upon the legitimate needs of law enforcement, including the protection of the
confidentiality of informants, or any other factor or set of factors which outweighs
the usefulness of the discovery."). Consistent with the common law right of access
to judicial records, "the burden is on those seeking to seal [the] records to show
that the public's right of access is outweighed by competing interests." Burton,
189 A.D.2d at 535- 36. To support a sealing request, "[s]pecificity of proof and of
judicial findings are required, and a trial court must also consider less drastic
alternatives to sealing the records which would adequately serve the competing
interests." Id. at 536. As such, where continued protection of some confidential
information contained in the search warrant or underlying documents is required,
the District Attorney will seek to redact only that information that may threaten an
ongoing criminal matter or an individual's safety. See 4 N.Y. SEARCH & SEIZURE
§ 4.02(7)(b ). Redaction is how courts balance the right of public access with law
enforcement and safety concerns, not a blanket denial of access. See, e.g.,
- 11-
Macedonia, 2016 WL 2616995, at *9 (finding that the correct course in an
unsealing order is to redact sensitive information and unseal the application for a
search warrant). Where there is no special justification for keeping information
confidential, the documents are unsealed and information is open to the public.
See id. (unsealing a search warrant application when "an important reason for the
initial[] sealing, namely, the integrity of an ongoing investigation, [was] no longer
extant").
Again, federal law is in accord with New York law. Following the
execution of a search warrant, federal prosecutors "must move to seal [a] warrant"
in order to prevent disclosure. Application of Newsday, Inc., 895 F.2d at 79-80.
The Second Circuit has cautioned that sealing such records is a "drastic restriction
on the common law right of access [that is] not always appropriate," id., and other
Circuits have reached similar conclusions. See, e.g., United States v. Bus. of
Custer Battlefield Museum & Store Located at Interstate 90, Exit 514, S. of
Billings, Mont., 658 F.3d 1188, 1192 (9th Cir. 2011) (finding that "the common
law right of access applies to warrant materials after an investigation has been
terminated" (internal quotation marks omitted)); In re Application of N. Y Times
Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83, 92 (D.D.C.
2008) (finding that the common law affords the press and public a right to inspect
warrant materials following the close of an investigation); In re Baltimore Sun Co.,
- 12-
886 F.2d 60, 65-66 (4th Cir. 1989) {finding that the common law right of
inspection attaches once a warrant is filed).
B. No Legitimate Law Enforcement Interest Justifies Denying Access
to the Search Warrant Affidavit at This Stage.
In this case, the District Attorney has not identified any legitimate law
enforcement interest that justifies continued nondisclosure of the Affidavit and
warrants "a protective order denying, limiting, conditioning, delaying or regulating
discovery pursuant to this article for good cause, including ... an adverse effect
upon the legitimate needs of law enforcement, 0 the protection of the
confidentiality of informants, or any other factor or set of factors .... " N.Y.
C.P.L. § 240.50(2). A prosecutor is frequently in a unique position to evaluate the
consequences of disclosure on the integrity of an investigation and should be
afforded a certain degree of discretion in making such determinations. There is no
danger of disregarding a prosecutor's judgment here, however, because the District
Attorney has never sought a protective order in connection with the Affidavit nor
advanced any law enforcement interest to be protected. Regardless of the scope of
discretion afforded prosecutors in such circumstances, the District Attorney is not
permitted unilaterally to wrest decision-making authority over disclosures from the
courts. See, e.g., Macedonia, 2016 WL 2616995, at *8 (finding that "[t]he public's
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right to inspect court documents is subject to the inherent power of the courts to
regulate the same").
Absent some genuine interest, presented to and examined by a neutral court,
there is no basis under established New York law and practice for the District
Attorney's extraordinary decision to simply refuse to produce the Affidavit to
Facebook even as core issues implicating that document were being litigated in the
Appellate Division. Following the District Attorney's motion to unseal the
affidavit and the supporting documents on June 23, 2014, the trial court held that:
"[T]his matter having duly come to be heard before this Court on June
23, 2014; AND a detailed and sufficient factual showing of a
particularized need for this disclosure having been made to this Court;
and UPON a finding that this disclosure of the aforesaid search
warrants would be in the public interest and an appropriate exercise of
this Court's discretion; it is ORDERED that the July 23, 2013 search
warrants, and the supporting affidavit, that were signed by Justice
Jackson, and the relevant litigation and decisions, including any and
all fillings made by Facebook, Inc. and the District Attorney, and any
and all decisions by Justice Jackson and the Appellate Division, First
Department be unsealed."
(A212.) The trial court's order did not include any limitation that would justify
the District Attorney's continued withholding of the Affidavit, and there is no
protective order keeping the documents in question hidden from public view nor
any evidence in the record that the District Attorney has ever sought such an order
as New York law requires. See N.Y. C.P.L. § 240.50(2); Burton, 189 A.D.2d at
536.
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Against the backdrop of the strong presumption of public access to judicial
records, secrecy is not the default rule under New York law. The District
Attorney's failure to take the step of seeking a protective order to safeguard any
potentially sensitive information belies any suggestion that legitimate law
enforcement interests justify withholding the Affidavit after the execution of the
warrants, the conclusion of its investigation, and the issuance of indictments.
In denying Facebook's motion to compel, the trial comt acknowledged that
any risk to the privacy of third parties can be mitigated by the use of redactions.
(See A38- A41 ("It is assumed that once the Affidavit is disclosed to the defendants
in People v. Lavallee, et. al, it will be available to the public, with presumably
appropriate redactions to protect the privacy interests of those individuals not
indicted."). The search wan-ants have been executed, the District Attorney's
investigation has ended, and grand jury indictments have issued against the small
subset of targets that prosecutors believe violated the law. While the District
Attorney undoubtedly has an interest in ensuring the integrity of its investigations,
that interest loses force when an investigation is complete. Since the investigation
of the targeted individuals in this case has ended, the nondisclosure of the Affidavit
no longer serves any legitimate law enforcement interest, see, e.g., Butterworth v.
Smith, 494 U.S. 624, 632 (1990) (recognizing that the government's interest in
secrecy for the purposes of investigative integrity is directly tied to whether the
- 15 -
investigation is ongoing, for "[w]hen an investigation ends, there is no longer a
need to keep information from the targeted individual in order to prevent his
escape"), any remaining sensitive material can be adequately protected through
redactions, and the District Attomey's secrecy concems do not outweigh "the
public's right of access." Burton, 189 A.D.2d at 536. The common law right of
access thus requires the disclosure of judicial records like the Affidavit.
PUBLIC ACCESS TO AN UNSEALED AFFIDAVIT THAT
ESTABLISHES THE PROBABLE CAUSE UNDERLYING SEARCH
WARRANTS, AFTER THE EXECUTION OF THOSE WARRANTS
AND THE CONCLUSION OF THE INVESTIGATION, PROMOTES
PUBLIC CONFIDENCE IN THE TRANSPARENCY AND THE
INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM
A. Public Access to Search Warrant Affidavits Benefits the Public
Interest.
Allowing public access to search warrant affidavits serves many vital
purposes. See Nebraska Press Ass 'n v. Stuart, 427 U.S. 539, 587 (1976) (Brennan,
J., concurring) ("[F]ree and robust reporting, criticism, and debate can contribute to
public understanding of the rule of law and to comprehension of the functioning of
the entire criminal justice system, as well as improve the quality of that system by
subjecting it to the cleansing effects of exposure and public accountability."). For
instance, public access to the affidavits underlying search warrants promotes public
confidence in the integrity of the criminal justice system; denying such access
prevents access to a judicial document that should be available for open inspection
- 16-
by the public, see, e.g., Nixon, 435 U.S. at 597 (recognizing the "right to inspect
and copy public records and documents, including judicial records and
documents"); see also David Horan, Breaking the Seal on White-Collar Criminal
Search Warrant Material, 28 PEPP. L. REv. 317, 325 (2001) (arguing that sealing
orders "deny targets any access to knowledge of the basis for secrecy, as well as
the basis for the search."), and unfairly hinders the determination of whether the
issuance of a search warrant violates constitutional rights. In short, withholding
judicial documents when there is no longer a need to keep the information that they
contain sealed is harmful to the public interest as it diminishes the public's
perception of the legitimacy of the criminal justice system. Thus, far from
adversely affecting any cognizable law enforcement interest, requiring disclosure
of the Affidavit consistent with established New York practice and procedure in
countless other cases would strengthen public faith in the criminal justice system.
Generally, the validity of a search warrant depends upon whether the
showing at the time of issuance satisfies fundamental requirements as to ( 1) the
existence of probable cause and (2) whether the description of the premises to be
searched, and the person or things to be seized, satisfies the basic requirement of
particularity. People v. Brown, 96 N.Y.2d 80, 84- 85, 88 (2001). The current
status of the Affidavit - technically unsealed but nonetheless unavailable and
withheld purely at the discretion of the District Attorney - prevents the public
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from scrutinizing whether the search warrants in this case comply with these
fundamental requirements and thus undermines the normal checks and balances of
the search warrant process. See Erica A. Kaston, The Expanding Right of Access:
Does It Extend to Search Warrant Affidavits?, 58 FORDHAM L. REv. 655, 671
(1990) ("Allowing access to the affidavits would reassure the public of the
propriety of ... the original issuance of the search warrant ... [because] if
affidavits are made public, the people swearing them out would be more
conscientious about being absolutely truthful, knowing that the public can
scrutinize the affidavits."). This lack of transparency threatens the integrity of the
search warrant process. In contrast, disclosing the Affidavit may allow 319
Facebook users who were targeted by the warrant, but never indicted to, challenge
a substantial invasion of their privacy. See In re John Doe Partnership, 145 Misc.
2d 783, 787 (N.Y. Sup. Ct. 1989) (ordering disclosure of redacted warrant
application material as "[w]here no indictment follows [a search], the public
cannot know whether the search warrant was properly issued unless its basis, the
application, is open to scrutiny").
B. Public Access to the Unsealed Affidavit in This Case Promotes the
Perceived Legitimacy of the Criminal Justice Process.
Public access to search warrant materials adds a necessary layer of
protection and legitimacy to the search warrant process. See Lynn B. Oberlander,
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A First Amendment Right of Access to Affidavits in Support of Search Warrants , 90
COLUM. L. REv. 2216,2237 (1990) ("Public access to affidavits plays a significant
positive role in the functioning of the search warrant process . . . . Access
enhances the ability of citizens to participate meaningfully in the democratic
process, acts as a check upon prosecutorial and judicial misconduct, and is
consistent with the constitutional mandate of the fourth amendment."). Requiring
disclosure of the unsealed Affidavit following the execution of the search warrants
and the conclusion of the Disttict Attorney's investigation would help to strengthen
public faith in the criminal justice process. See Peter G. Blumberg, Sunshine and
Ill Wind: the Forecast for Public Access to Sealed Search Warrants, 41 D EPAUL L.
REv. 431 , 453-54 (1992) ("[A]ccess serves as a check on the judiciary and the
prosecution .. . . Among the recognized interest is that of the public in receiving
accurate information on the criminal justice system and in having the appearance
of justice, which in turn would create a significant therapeutic value to citizens.").
New York courts frequently have demonstrated heightened concern for "the
right of citizens to be free from unlawful governmental intrusions," see People v.
P.J Video, Inc., 68 N.Y.2d 296, 303 (1986), and they recognize that "Fourth
Amendment jurisprudence ' keep[s] pace with the march of science' [and
technology]." People v. Weaver, 12 N.Y.3d 433, 442 (2009) (quoting United
States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007)). When a court issues a search
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warrant, privacy interests are protected through procedural protections that require
probable cause, reasonable time limitations, and particularity as to the place and
things to be seized. The "manifest purpose" of these requirements "[i]s to prevent
general searches," Maryland v. Garrison, 480 U.S. 79, 84 (1987), and in order to
be effective, such requirements "must be applied with 'scrupulous exactitude."'
Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas,
379 u.s. 476, 485 (1965)).
Investigating individuals' social media presence and the collection of
personal electronic data are undeniably "valuable tools for law enforcement ... to
aid in the detection of criminal conduct," but "without [adequate] judicial
oversight," the use of such powerful tools "presents a significant and . . .
unacceptable risk of abuse." Weaver, 12 N.Y.3d at 447. Allowing the public to
scrutinize search warrant applications - and the reasons that underlie those
applications - after a warrant has been executed serves a crucial oversight
function and ensures that law enforcement does not tread beyond the petmissible
zone of constitutional searches and seizures. See Kaston, supra, at 670 ("Access
acts as a deterrent to misconduct. There must be some process by which society
can monitor law enforcement officials' decisions to search and seize persons and
property rather than relying solely on the judgment of the neutral magistrate.").
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Greater transparency with respect to government intrusions on citizens'
privacy promotes greater confidence among the public that prosecutors will not
abuse the powers they wield, reinforcing faith in the fairness and legitimacy of the
criminal justice system. See United States v. Aref, 533 F.3d 72, 83 (2d Cir. 2008)
(stating that "[a]ny step that withdraws an element of the judicial process from
public view makes the ensuing decision look more like fiat and requires rigorous
justification"). It also advances prosecutors' larger goal of procuring justice,
because it makes the public more likely to cooperate with law enforcement
objectives and to accept the results of judicial and prosecutorial decisions. See,
e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570- 71 (1980)
("especially in the administration of criminal justice, the means used to achieve
justice must have the support derived from public acceptance of both the process
and its results"); Blumberg, supra, at 445 ("Courts have recognized this common
law right because public scrutiny of judicial documents enlightens public opinion,
safeguards justice, and promotes confidence in the judiciary."); Oberlander, supra,
at 2239 ("Access to affidavits adds to a sense of procedural justice by facilitating
an understanding of the factors that determine whether a search is reasonable. In a
more general sense, access to affidavits will aid public knowledge about police
practice and probable cause determinations.").
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These aims, which speak directly to prosecutors' core obligation to seek
justice in every case while serving more broadly as stewards of the public's trust in
the criminal justice system, are best served by disclosing to the courts and the
public - at an appropriate point following an investigation - the judicial records
providing the basis on which they seek to intrude on citizens' private lives.
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CONCLUSION
For the foregoing reasons, amici respectfully urge that any continued secrecy
surrounding the unsealed Affidavit underlying the executed search warrants in this
case disregards established New York law and practice, fails to advance any
legitimate law enforcement interest, and undermines public confidence in the
integrity of the criminal justice system.
Dated: New York, New York
December 30, 2016
DEBEVOISE & PLIMPTON LLP
By :~
Helen . CantweLl
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J arrod L. Schaeffer
Laura J. Samuels
919 Third A venue
New York, New York 10022
(212) 909-6000 (phone)
(212) 909-6836 (fax)
hcantwe1l@debevoise.com
jlschaeffer@debevoise.com
ljsamuels@debevoise.com
Attorneys for Several Former New
York County Assistant District
Attorneys as Amici Curiae
NEW YORK STATE COURT OF APPEALS
CERTIFICATE OF COMPLIANCE
The foregoing brief was prepared on a computer using Microsoft Word. A
proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 14
Line spacing: Double
The total number of words in the 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, or any authorized addendum containing
statutes, rules, regulations, etc., is 5,081.
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