APL-2015-00318
To be argued by
SUSAN AXELROD
(30 Minutes Requested)
Court of Appeals
STATE OF NEW YORK
In re 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.
B R I E F F O R R E S P O N D E N T
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
May 12, 2016
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................................. iii
PRELIMINARY STATEMENT ......................................................................................... 2
INTRODUCTION................................................................................................................ 2
SUMMARY OF ARGUMENT ........................................................................................... 5
THE RELEVANT RECORD ............................................................................................. 7
POINT I
THIS COURT DOES NOT HAVE
JURISDICTION TO REVIEW
FACEBOOK'S CLAIMS. ..................................................... 19
A. Because The Criminal Procedure Law
Does Not Authorize Appeals To Be Taken
From Orders Denying Motions Made In
Connection With Search Warrants,
Facebook's Appeal Must Be Dismissed. ............................. 19
B. Facebook's Complaint About The Issuance
Of The Protective Order is Moot. ....................................... 34
POINT II
FACEBOOK DOES NOT HAVE
STANDING TO RAISE THE CLAIMS
THAT IT IS MAKING ON BEHALF OF
THE ACCOUNT HOLDERS. IN ANY
EVENT, EVEN A PARTY MAY NOT
RAISE AN ATTACK ON A WARRANT
PRIOR TO ITS EXECUTION ........................................... 35
POINT III
FACEBOOK'S ATTACKS ON THE
NONDISCLOSURE ORDER ARE ONLY
PARTIALLY PRESERVED AND ARE
COMPLETELY MERITLESS. ........................................... 48
POINT IV
FACEBOOK IS NOT ENTITLED TO
VIEW THE INVESTIGATOR'S
AFFIDAVIT. .......................................................................... 57
CONCLUSION ................................................................................................................... 64
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TABLE OF AUTHORITIES
FEDERAL CASES
Alderman v. United States, 394 U.S. 165 (1969) ................................................................... 38
Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989) ............................................... 58, 63
Boehner v. McDermott, 484 F.3d 573 (D.D.C. 2007) ........................................................... 54
Butterworth v. Smith, 494 U.S. 624 (1990)........................................................................ 55-56
Craig v. Boren, 429 U.S. 190 (1976) ...................................................................................... 41
Doe v. Backpage.com LLC, 2016 U.S. App. LEXIS 4671 (1st Cir. 2016) ................... 28, 52
Fair Finance v. United States, 692 F.3d 424 (6th Cir. 2012) .................................... 58-59, 61
Glazer v. Fireman's Fund Ins Co., 2012 U.S. Dist. LEXIS 51658 (S.D.N.Y.
2012) ................................................................................................................................. 27
Groh v. Ramirez, 540 U.S. 551 (2004) .................................................................................. 46
In The Matter Of A Warrant To Search A Certain Email Accounts Controlled
And Maintained By Microsoft Corporation, 15 F.Supp.3d 466 (S.D.N.Y.
2014) ........................................................................................................................... 26, 31
In re Directives to Yahoo! Inc., Pursuant to Section 105B of the Foreign Intelligence
Surveillance Act, 2008 WL 10632524 (FISA Court 2008) ....................................... 42-43
In re Google Email Accounts, 99 F.Supp.3d 992 (D. Alaska 2015) ................................ 44-45
In re Grand Jury Proceedings, 115 F.3d 1240 (5th Cir. 1997) ................................................ 25
In re N.Y. Times Co., 577 F.3d 401 (2d Cir. 2009) ............................................................. 58
In Re Sealing and Non-Disclosure of Pen/Trap, 2703(d) Orders, 562 F.Supp.2d
876 (S.D.Tex. 2008) ............................................................................................ 55-56, 63
In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569
(8th Cir. 1988) ................................................................................................................. 58
In re Verizon Internet Services, Inc., 257 F.Supp.2d 244 (D.D.C. 2003) .............................. 40
Minnesota v. Carter, 525 U.S. 83 (1998) .......................................................................... 37, 46
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NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ................................................ 40
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) ................................................ 60
Plumhoff v. Rickard, __ U.S. __, 134 S.Ct. 2012 (2014) ...................................................... 37
Rakas v. Illinois, 439 U.S. 128 (1978) ................................................................................... 38
Rawlings v. Kentucky, 448 U.S. 98 (1980) ......................................................................... 37-38
Sams v. Yahoo! Inc., 713 F.3d 1175 (9th Cir. 2013) ............................................................. 26
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) ........................................................... 53-54
Sebelius v. Cloer, __ U.S. __, 133 S.Ct. 1886 (2013) ............................................................ 51
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ..................................................................... 28
Times v. Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989) .............................. 58-59
United States v. Applebaum, 707 F.3d 283 (4th Cir. 2013) ............................................ 42, 58
United States v. AppolloMedia Corp., 2000 U.S. App. LEXIS 38754 (5th Cir.
2000) ................................................................................................................................. 54
United States v. Bach, 310 F.3d 1063 (8th Cir. 2002) ..................................................... 30-32
United States v. Custer Battlefield Museum, 658 F.3d 1188 (9th Cir. 2011) ..................... 62-63
United States v. Karrer, 460 Fed. Appx. 157 (3d Cir. 2012) ................................................ 46
United States v. Martin, 2015 U.S. Dist. LEXIS 94754 (D.Ariz. 2015) ............................ 27
United States v. Ninety-Two Thousand Four Hundred and Twenty-Two Dollars
and Fifty-Seven Cents, 307 F.3d 137 (3d Cir. 2002) ........................................................ 46
STATE CASES
381 Search Warrants Directed to Facebook, Inc. v. New York County District
Attorney's Off., 132 A.D.3d 11 (1st Dept. 2015) ............................................................. 2
Alphonse C. v. Morgenthau, 38 N.Y.2d 923 (1976) .......................................................... 21-22
Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246 (1987) ........................ 51
City of New York v. Maul, 14 N.Y.3d 499 (2010) ................................................................ 34
-iv-
Crain Communications, Inc. v. Hughes, 74 N.Y.2d 626 (1989) .............................................. 60
Cunningham v. Nadjari, 39 N.Y.2d 314 (1976) ............................................................... 22-23
Hearst Corp. v. Clyne, 50 N.Y.2d 707 (1980) ....................................................................... 34
Hynes v. Moskowitz, 44 N.Y.2d 383 (1978).......................................................................... 24
In re Application for Search Warrant, 108 Misc. 2d 440 (Kings Co. 1981) ......................... 37
In re Dorothy D. (Anonymous), 49 N.Y.2d 212 (1980) ......................................................... 60
In re Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of the United
Brotherhood of Carpenters and Joiners, 72 N.Y.3d 307 (1988) ................................ 5, 24, 34
In re Nassau County Grand Jury, 4 N.Y.3d 665 (2005) ........................................................ 24
Matter of ADA Merri Bernstein (Tom's Associates), 67 N.Y.2d 852 (1986) ......................... 21
Matter of Barber v. Dembroski, 54 N.Y.2d 648 (1981) .................................................... 49, 57
Matter of Newsday v. Morgenthau, 3 N.Y.3d 651 (2004) .................................................. 20-23
Matter of Santangello v. People, 38 N.Y.2d 536 (1976) .......................................................... 20
Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668 (2015) ................................................. 34
New York County Lawyers' Association v. New York, 294 A.D.2d 69 (1st
Dept. 2002) ...................................................................................................................... 40
Newsday, Inc. v. Morgenthau, 4 A.D.3d 162 (1st Dept. 2004) ........................................ 58-59
Newsday Inc., v. Sise, 71 N.Y.2d 146 (1987) ......................................................................... 60
People v. Bautista, 7 N.Y.3d 838 (2006) .......................................................................... 19, 48
People v. Bilsky, 95 N.Y.2d 172 (2000) ................................................................................. 23
People v. Brown, 96 N.Y.2d 80 (2001) ................................................................................... 45
People v. Burton, 6 N.Y.3d 584 (2006) .................................................................................. 38
People v. Coleman, 56 N.Y.2d 269 (1982) ....................................................................... 49, 57
People v. DeJesus, 54 N.Y.2d 447 (1981) ............................................................................... 19
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People v. DiNapoli, 27 N.Y.2d 229 (1970) ........................................................................... 54
People v. Fetcho, 91 N.Y.2d 765 (1998) ................................................................................. 54
People v. Hetrick, 80 N.Y.2d 344 (1992) ............................................................................... 23
People v. Liang, 79 N.Y.2d 166 (1992) ................................................................................. 48
People v. Lieberman, 47 N.Y.2d 931 (1979) .......................................................................... 49
People v. McLean, 15 N.Y.3d 117 (2010) .............................................................................. 47
People v. Nieves, 36 N.Y.2d 396 (1975)............................................................................ 45-46
People v. Potwora, 48 N.Y.2d 91 (1979) ................................................................................ 23
People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996) ................................................................. 38
People v. Santos, 64 N.Y.2d 702 (1984)........................................................................... 19, 22
People v. Sullivan, 56 N.Y.2d 378 (1982) .............................................................................. 23
People v. Wesley, 73 N.Y.2d 351 (1989) ................................................................................ 38
Sierra Club v. Village Of Painted Post, 26 N.Y.3d 301 (2015) ......................................... 39-40
Vinag v. Hynes, 54 N.Y.2d 437 (1981) ................................................................................. 25
FEDERAL STATUTES AND RULES
18 U.S.C. 2510(15) ................................................................................................................ 27
18 U.S.C. 2701. ..................................................................................................................... 26
18 U.S.C. 2703 ................................................................................................... 10, 17, 26, 28
18 U.S.C. 2703(a) .................................................................................................................. 29
18 U.S.C. 2703(b) ........................................................................................................ 8, 28, 51
18 U.S.C. 2703(d) ...................................................................................................... 28, 41, 51
18 U.S.C. 2703(g) ............................................................................................................ 22, 29
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18 U.S.C. 2705 ................................................................................................................. 27-28
18 U.S.C. 2705(b) ............................................................................................................ 50, 55
18 U.S.C. 2707 ...................................................................................................................... 33
18 U.S.C. 2711(2) .................................................................................................................. 27
42 U.S.C. 1983 ...................................................................................................................... 33
50 U.S.C. 1805(h) .................................................................................................................. 43
Federal Rule of Criminal Procedure 41 ............................................................................. 62
STATE STATUTES
California Penal Code Section 1524.2(e) ............................................................................. 3
CPL 1.20 ................................................................................................................................ 20
CPL 190.25 ....................................................................................................................... 54-55
CPL 440.10 ............................................................................................................................ 21
CPL 440.20 ............................................................................................................................ 21
CPL 440.30 ............................................................................................................................ 21
CPL 440.40 ............................................................................................................................ 21
CPL 450.10 ....................................................................................................................... 20-21
CPL 450.15 ...................................................................................................................... 21, 48
CPL 450.20 ............................................................................................................................ 20
CPL 450.90 ............................................................................................................................ 22
CPL 460.20 ............................................................................................................................ 22
CPL 470.05 ...................................................................................................................... 49, 57
CPL 690.10 ............................................................................................................................ 10
CPL 700.65 ............................................................................................................................ 54
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CPL 705.30 ............................................................................................................................ 54
CPL 710.20 ................................................................................................................ 33, 36-37
CPL 710.70 ...................................................................................................................... 33, 36
CPLR 5602 ............................................................................................................................ 19
PL 250.20 ............................................................................................................................... 54
Public Officers Law, Article 6 ............................................................................................. 63
OTHER AUTHORITIES
Denzer, Practice Commentary, McKinney's Cons. Laws of NY, Book 11A,
CPL 710.10, 710.20, 710.40 ........................................................................................... 37
S. Rep. No. 99-541 (1986) ................................................................................................... 26
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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
PRELIMINARY STATEMENT
By permission of this Court granted on December 16, 2015 (26 N.Y.3d 914
[2015]), Facebook, Inc. appeals from a July 21, 2015 order of the Appellate Division,
First Department. 381 Search Warrants Directed to Facebook, Inc. v. New York County
District Attorney's Off., 132 A.D.3d 11 (1st Dept. 2015). By that order, the Appellate
Division dismissed Facebook's appeal from an order issued by New York State
Supreme Court Justice Melissa C. Jackson denying Facebook's motion to quash search
warrants served on Facebook and to vacate the nondisclosure order issued in
connection with those warrants. By that same order, the Appellate Division also
dismissed Facebook's appeal from an order issued by New York State Supreme Court
Justice Daniel FitzGerald denying Facebook's motion to compel the New York
County District Attorney's Office to disclose to Facebook the affidavit filed in
support of those search warrants.
INTRODUCTION
In 2010, the New York County District Attorney's Office began an
investigation into a large-scale criminal scheme, carried out for over 20 years by scores
of individuals, to defraud the Office of Social Security through the filing of bogus
disability claims. In connection with that investigation, on July 15, 2013, an
investigator with the District Attorney's Office applied for search warrants to obtain
various categories of information stored in the Facebook accounts of 381 individuals.
-2-
The Honorable Melissa C. Jackson signed those warrants and also directed Facebook
that it could not notify the account holders identified in the warrants either that the
warrants had been obtained or that they had been executed. Facebook maintains its
headquarters in California, and California law requires California companies to accept
search warrants from other states as if they had been issued by justices in California.
See California Penal Code Section 1524.2(e). Thus, Facebook has created a portal, on
its website, through which it accepts search warrants. Pursuant to that arrangement,
the investigator served the warrants through Facebook's portal.
Facebook moved before Justice Jackson to quash the warrants and to allow
Facebook to notify the account holders whose accounts were the subject of the
warrants of the warrants' existence. Justice Jackson denied Facebook's motions and
Facebook complied with the warrants. The People then presented their investigation
to a New York County grand jury and obtained a number of indictments. Those
indictments were issued in stages and at each stage, the People applied to the
Honorable Daniel FitzGerald for unsealing orders regarding the relevant individuals
whose Facebook accounts had been searched, so that Facebook could notify those
account holders of the existence of the warrants. Justice FitzGerald granted those
unsealing orders. After all the account holders were notified, Facebook attempted to
obtain a copy of the search warrants' supporting affidavit. When the District
Attorney's Office refused to provide it, Facebook filed a motion before Justice
-3-
FitzGerald to compel the affidavit's production. By order dated August 13, 2014, the
court denied that motion.
Facebook appealed from the denial of both orders to the Appellate Division,
First Department. The People moved to dismiss on the ground that the orders
appealed from were nonappealable orders. The Appellate Division denied the
People's motions without prejudice. The People also filed their respondent's briefs
and again raised the issue of appealability. The Appellate Division subsequently
dismissed Facebook's appeals, finding that the lower courts' orders were
nonappealable.
Before this Court, Facebook raises five arguments. First, Facebook contends
that it is entitled to appeal from the trial court's orders. Facebook notes that civil
appeals may be taken from the denials of motions to quash subpoenas, even if those
subpoenas were issued in criminal matters. Facebook insists that the warrants issued
here were so similar to subpoenas that they should be treated as such for the purpose
of appealability. Second, Facebook asserts that it has standing to raise Fourth
Amendment attacks on behalf of its users. Third, Facebook complains that the
nondisclosure order did not satisfy the requirements of the applicable federal statute
(the Stored Communications Act), and also violated Facebook's First Amendment
rights. Fourth, Facebook insists that the court's order unsealing the investigator's
affidavit as to the indicted defendants rendered that affidavit a public document and
that Facebook was therefore entitled to obtain a copy. Finally, Facebook argues that,
-4-
even without resort to a review of the affidavit, the warrants failed to satisfy the
Fourth Amendment because they were facially overbroad and lacked particularity.
SUMMARY OF ARGUMENT
First and foremost, this Court simply does not have jurisdiction to hear this
appeal. As required by the federal Stored Communications Act (SCA), which governs
the acquisition of information from electronic communication services such as
Facebook, the People obtained search warrants in state court for the contents of the
various accounts. A search warrant is a criminal proceeding. Thus, the right to appeal
from that proceeding is governed by the Criminal Procedure Law, and the Criminal
Procedure Law does not authorize an appeal from orders concerning search warrants
issued by trial courts.
Because motions to quash subpoenas are appealable, Facebook attempts to treat
the warrants as if they were subpoenas. The Appellate Division correctly rejected that
argument. The warrants were reviewed by a neutral and detached magistrate, who
found that they established probable cause. These are the essential characteristics of a
search warrant; subpoenas, in contrast, do not undergo any pre-issuance review and
must satisfy only a minimal relevance standard. In other words, the warrants issued
here were, indeed, warrants. As such, the denials of Facebook's motions in
connection with the warrants are nonappealable orders that cannot be reviewed by
this Court.
-5-
Facebook's appeal with respect to the trial court's nondisclosure order is barred
for a second reason, as well. That order has been lifted and Facebook has been
permitted to notify all of the warrants' targets that their accounts have been searched.
Due to that change in circumstance, neither Facebook's rights nor those of the
District Attorney's Office will be affected by this Court's ruling on this matter. That
claim is therefore moot, and should not be entertained by this Court.
Even if this Court were to find that it could hear this appeal, Facebook still has
no meritorious claims that it can advance. First, the Criminal Procedure Law does not
entitle anyone to move to contest a warrant prior to its execution. While Facebook
argues that the federal statute does, in fact, entitle it to make this pre-execution
argument, the statute limits the claims the provider can raise to those concerning the
burden of compliance with the command for production of evidence. The statute
does not grant the provider the right to raise Fourth Amendment claims on behalf of
its account holders. That limitation is fully in keeping with both state and Federal
constitutional law. Fourth Amendment protections, after all, are personal, and thus
only those whose privacy rights are implicated may bring them. Facebook itself was
not an account holder, but only a storage facility for the information that its members
placed in their accounts. Its privacy interests were not implicated by the search of
these accounts, and it therefore has no constitutional claims to raise regarding the
issuance of the warrants.
-6-
Facebook's argument that the court's nondisclosure order violated Facebook's
First Amendment rights is unpreserved, since Facebook never raised it in the trial
court. And, in any event, Facebook's First Amendment argument fails on its merits as
the order did not constitute a permanent ban on disclosure but was intended to and
did apply only for a limited duration. Similarly, Facebook's argument that the
nondisclosure order violated the SCA is meritless as the trial court's order was in full
compliance with the federal statute.
Facebook similarly cannot prevail on its claim that the search warrant affidavit
was a public document that it was entitled to examine. Again, in the trial court,
Facebook never made the argument that the affidavit was a public, judicial document
and therefore has failed to preserve that argument here. In any event, Facebook
cannot prevail on the merits. The affidavit was never filed in court, and the court's
unsealing order was a limited one that did not transform the affidavit into a public
document available for review and inspection by anyone who asked to see it.
THE RELEVANT RECORD
On July 15, 2013, Senior Investigator Donato Siciliano from the New York
County District Attorney's Office applied for search warrants to obtain specified
categories of information contained in the Facebook accounts of 381 individuals. The
warrants were supported by evidence that was outlined in one affidavit. New York
State Supreme Court Justice Melissa C. Jackson issued the warrants, which also
-7-
directed Facebook, pursuant to 18 U.S.C. 2703(b), not to notify or otherwise disclose
to the account holders the existence or execution of the warrants (A60-62).1
On August 20, 2013, Facebook filed before Justice Jackson a "Motion to
Quash Bulk Search Warrants and Strike Nondisclosure Provisions." Facebook argued
that the warrants were constitutionally infirm as they were overbroad, lacked
particularity, and failed to include procedures to "minimize the collection or retention
of information" that was unrelated to the criminal investigation. Facebook also
sought permission to notify the account holders of the existence of the warrants,
arguing that the nondisclosure provision was defective because it cited to the wrong
statutory provision, failed to set a definite date by which it could be lifted, and was
unnecessary (A64-71).
In a response dated August 27, 2013, the People opposed Facebook's motion.
The People defended the temporal scope of the warrants on the ground that they
were issued as part of a three-year investigation into a criminal scheme that had been
active for in excess of twenty years and thus even pre-dated the inception of
Facebook. The People further asserted that the warrants had been properly issued
after a trial judge reviewed the underlying affidavit. The People also argued that those
individuals who were "aggrieved" by the searches undertaken pursuant to the warrants
1 Parenthetical references preceded by "A" are to the Appendix that Facebook filed.
References preceded by "Add." are to the addendum. Finally, references preceded by "FB"
are to Facebook's brief before this Court.
-8-
would have ample opportunity to litigate all the relevant issues during any ensuing
criminal proceeding (A74). The People added that the non-disclosure order had been
properly issued (A75).2
On August 30, 2013, the parties appeared before Justice Jackson in connection
with this motion. For the most part, Facebook restated and then expanded upon the
arguments it had made in its motion (A114-49).3 In response to the court's questions
about how Facebook could assert privacy interests on behalf of individual users,
Facebook responded that its status as the recipient of the warrants made it the
appropriate entity to assert standing and to act in the interests of the users (A124).
The People, in turn, cited to the provisions of the SCA and argued that both the
2 In its reply, filed on August 29, 2013, Facebook reiterated the arguments raised in its
main motion and added that the prosecutor's contention about the users' ability to contest
the warrants rested on the assumption that each of the affected accounts holders would be
criminally charged (A80).
3 During the colloquy, attorneys from Facebook explained how this social media site
works: Facebook was a free platform in which users would sign up by establishing a
"profile." Users could choose how much personal information to place in this account
profile. Thus, for instance, users could input their dates of birth, places of birth, sexual
preferences and political preferences. Certain basic information such as the user's name and
a profile picture was "public." Otherwise, users could set the privacy settings to control how
they shared information (A117-20, A122).
Users could also devise a "friends list." They could then share any number of items,
such as videos, photographs, and links to other sites, with those friends. They could also
create "groups," such as family or friend groups, with whom they shared certain information
(A119). Facebook provided a "time line" function that allowed users to post information
about what they were doing in the present as well as photographs from previous occasions
such as childhood (A120).
Additionally, Facebook had a messaging service that was similar to email. In other
words, users could send private messages to other users through this function (A118).
-9-
search warrants and the nondisclosure order complied with that statute (A135-36).
The People added that Facebook did not have standing to raise arguments on behalf
of its users. Rather, if and when individual users became defendants, they could move
to controvert the relevant warrants as part of the criminal proceeding (A138).
In a written order issued on September 17, 2013, the court denied Facebook's
motion in its entirety (A107). The court ruled first that it had authority to issue the
warrants pursuant to both Criminal Procedure Law Section 690.10(4) and 18 U.S.C.
2703. The court had reviewed the investigator's affidavit before signing the warrants
and had found that the affidavit established probable cause to believe that evidence of
criminality would be found in the Facebook accounts. By this determination, the
court had therefore also concluded that the warrants were not overbroad or
constitutionally vague (A109-110). The court further ruled that Facebook had failed
to establish standing, since it could not show that it had either an expectation of
privacy in the items to be searched and seized or the accounts themselves. Rather, the
users were the ones who arguably had expectations of privacy in their postings, and
thus might, in the right circumstances, have standing to controvert the warrants
(A108-09).
The court also upheld its issuance of the non-disclosure order. The court
stated that both state and federal law permitted it to "order nondisclosure as a
necessary exercise of discretion." The court noted that the SCA specifically permitted
the court to mandate nondisclosure when the court found that such disclosure could
-10-
cause adverse results. Here, the court ruled, disclosure by Facebook of the underlying
search warrants could lead to the destruction, removal or deletion of evidence. It
could also cause suspects and witnesses to flee. Thus, the nondisclosure order was to
remain in effect until the court ordered otherwise (A110-11).
On September 19, 2013, the People moved for an order directing Facebook to
comply with the search warrants or be held in contempt (A87). Facebook then
moved in the Appellate Division, First Department for a stay of enforcement of
Justice Jackson's order so that it could appeal from that order (A45-51). The
following day, September 20, 2013, Facebook filed a Notice of Appeal in the
Appellate Division (A100). On November 19, 2013, the Appellate Division issued an
order denying Facebook's request for a stay pending appeal (A151).
Upon receipt of the Appellate Division's order, Facebook complied with the
warrants and provided the information sought (A152-53). The People had been
presenting evidence to a New York County grand jury. On January 14, 2014, that
grand jury charged 106 individuals with various crimes in connection with a long-term
fraud against the Social Security disability system. Fifty-seven of the Facebook
accounts related to some of those defendants, and so, on January 16, 2014, upon the
People's application, New York State Supreme Court Justice Daniel FitzGerald issued
an unsealing order in connection with those 57 warrants (Add. 8, A154-56). The
People advised the attorneys for Facebook that, because the grand jury proceedings
-11-
were ongoing and further indictments could still be issued, it was necessary that the
remaining warrants remain sealed (Add. 8).
In February 2014, the grand jury issued additional indictments against 28
individuals. Among those indicted were "the core group of four individuals who
acted as masterminds of the scheme. . . ." They "were charged with conspiring, from
1988 through 2013, to steal more than $1 million from the Social Security
Administration by directing and assisting hundreds of applicants to create and submit
fraudulent disability applications" (Add. 8-9). The People moved for permission to
unseal the Facebook warrants in connection with these defendants, and on May 2,
2014, Justice FitzGerald granted that request (A157).
On June 23, 2014, the People sought and were granted a final unsealing order,
by which Facebook was permitted to notify the remaining account holders of the
evidence of the search warrants (Add. 9, A220). The court ordered that all documents
relevant to the search warrant were to be unsealed and "Facebook, Inc. [was
permitted to] disclose the existence and execution of these warrants to any associated
user/account holder" (A212-13). The District Attorney's Office subsequently
concluded its investigation and referred the remainder of the cases to the Inspector
General of the Social Security Administration for further investigation (Add. 9).
On June 20, 2014, several days before this last unsealing order was issued,
Facebook perfected before the Appellate Division its appeal from Justice Jackson's
September 17, 2013 order "denying Facebook's motion to quash 381 search warrants
-12-
and requiring Facebook to locate and produce user information." In that brief,
Facebook argued that Justice Jackson's order constituted an appealable order; that
Facebook had standing to challenge the warrants; that the warrants failed to pass
constitutional muster; and that the nondisclosure order violated both the First
Amendment and federal law (A160-209).
On July 14, 2014, Facebook moved, before the trial court, for an order
compelling the People to disclose to Facebook the investigator's affidavit,
representing that it would then provide a copy of the affidavit to the Appellate
Division for consideration in connection with Facebook's appeal (A214-25). In
support of their motion, attorneys for Facebook affirmed that, pursuant to the court's
June 23rd order, they had contacted the clerk's office in order to obtain a copy of the
affidavit and to ensure that the "First Department had full access to the relevant trial
court record." They were informed that "[n]one of the clerk's offices had a copy of
the affidavit" and that the "District Attorney's Office controls the file for this matter,
including the investigator's affidavit" (A220).
The People opposed that application. They asserted that their request for
unsealing did not extend to making the search warrant materials generally available to
the public. Rather, their request to unseal the documents was made (1) to allow
Facebook to alert the remainder of the users about the existence of the searches; (2)
to allow for the use of the search warrant material in connection with ongoing
investigations; and (3) to permit the People to make use of the materials, when
-13-
appropriate, in connection with the pending criminal proceedings. The People noted
that the proceedings in connection with the indictments had not yet reached the
motion stage and thus the criminal defendants had not been provided with copies of
the affidavit. Thus, Facebook's "premise" that the unsealing order was intended to
make the affidavit a public document was a mistaken one (A225-26).4
On August 13, 2014, Justice FitzGerald denied Facebook's motion. The court
noted that Justice Jackson had ruled that Facebook did not have standing to contest
the issuance of the warrants and that decision was "still the law of the case" (A38).
The court further found that:
The People's response in opposition to Facebook's current
application provides many valid reasons for denial of the
application, especially the People's argument that the
Affidavit is not part of the public record and that the
unsealing was effected for certain limited purposes. The
Affidavit is still being used in connection with a pending
criminal proceeding . . . , and it has not yet even been
disclosed to the defendants in that proceeding. The
unsealing did not mandate public disclosure of the
Affidavit. The public does not, for instance, have access to
a myriad of other non-sealed documents in the prosecutor's
file, relating to the investigation and/or prosecution of this
criminal matter. Moreover, a demand for the Affidavit
pursuant to the Freedom of Information Act ("FOIL")
would also require denial, since FOIL exempts from
disclosure documents related to pending criminal actions. .
. . Further, disclosure at this juncture would negatively
impact the privacy rights of the individuals named in the
Affidavit who were never indicted . . . yet are named in the
4 By papers dated August 11, 2014, Facebook filed a reply (A360-72).
-14-
Affidavit. The privacy rights of those individuals must be
superior to the right of a third party who seeks disclosure in
connection with an unrelated proceeding
(A38-39). As to Facebook's offer to provide the affidavit to the Appellate Division,
the court remarked that it was not aware that the appellate court had asked for the
document, and that Facebook's "belief that the Affidavit is needed by the Appellate
Division is pure conjecture" (A40). The court offered that Facebook should "feel
free" to request that the Appellate Division ask the People to provide the affidavit for
in camera review if that court deemed such review necessary (A40).
While this litigation was occurring, on August 4, 2014, the People moved to
dismiss the appeal from the denial of the motion to quash on the ground that Justice
Jackson's order was not appealable and that the appeal was moot. Facebook opposed
that motion in papers dated August 18, 2014, and the People filed a reply. By order
dated September 25, 2014, the Appellate Division denied that motion without
prejudice to raising the arguments in a respondent's brief (see A14). The People then
filed their response to the points raised in that brief.
On September 2, 2014, Facebook filed a second brief appealing Justice
Fitzgerald's order denying its motion to obtain a copy of the search warrant affidavit.
In this brief, Facebook argued, for the first time, that both Facebook and the public
had a common law right of access to, at the very least, a redacted version of the
investigator's affidavit. In October 2014, the People filed a motion to dismiss the
appeal as moot. In that motion, the People noted that, while more than 90
-15-
defendants had pleaded guilty, the cases of 30 defendants had not been resolved either
by plea or trial and that the People expected some of the defendants to begin filing
motions in the near future (Add. 4).5 At the same time, the People filed their brief in
opposition to this latest claim. On November 17, 2014, Facebook filed its reply.
By decision and order dated July 21, 2015, the Appellate Division unanimously
dismissed Facebook's appeals from the orders of both Justice Jackson and Justice
FitzGerald as "taken from nonappealable orders" (A32). The court rejected
Facebook's characterization of the warrants as subpoenas (A20-21). Rather, the court
concluded, the documents at issue constituted search warrants under both the
Criminal Procedure Law and the SCA. That was true notwithstanding any procedural
differences between the manner in which these warrants were executed and the
execution of traditional warrants that authorized searches of physical locations (A24).
In so holding, the Appellate Division upheld the trial court's finding that
Facebook could not bring its challenges in the first instance, because there was neither
a statutory nor constitutional right to challenge a warrant prior to its execution. "The
key role of the judicial officer in issuing a search warrant is described generally by the
Fourth Amendment, and more specifically by state statutes," none of which "refer to
an inherent authority for a defendant or anyone else to challenge an allegedly defective
warrant before it is executed" (A14-15)(emphasis supplied). The Appellate Division
5 Some of those cases are still ongoing.
-16-
stressed that before a warrant can be issued, it must be reviewed by a neutral and
detached magistrate who must determine whether the warrant satisfied the
requirements of the Fourth Amendment. This process provided ex ante protections,
since this neutral and detached magistrate served as the "constitutional gatekeeper"
protecting citizens from the actions of an overzealous government (A18). The
Criminal Procedure Law also provided ex post protection, since it allowed the target of
the warrant to challenge its issuance and the manner in which it was executed (A19).
Together, these ex ante and ex post protections eliminated the need for a pre-execution
motion to quash the warrant (A20).
The Appellate Division emphasized that, under the Criminal Procedure Law,
the sole remedy for challenging the legality of a warrant was by a pre-trial motion. If
the defendant was unsuccessful and was ultimately convicted, he could then appeal
from the denial of his motion. However, direct appellate review of interlocutory
orders was not available, because there was no statutory mechanism in the Criminal
Procedure Law either to make a motion to quash a warrant or to appeal from the
denial of such a motion (A20-21). 6
6 The Appellate Division observed that the warrants were "analogous" to warrants
issued pursuant to 18 U.S.C. 2703 of the SCA, and that this statutory scheme did give service
providers some limited grounds by which to complain about the process served on them in
advance of complying with it. The Appellate Division concluded that the statutory section
upon which Facebook relied for the proposition that it could contest the issuance of a search
warrant was limited to the issuance of other types of process and not to search warrants
(A24-29).
-17-
The Appellate Division remarked that Facebook was "[t]acitly conceding" that
no person or entity had the right to make a pre-execution motion to quash a warrant,
or to appeal from the denial of such a challenge (A21). Facebook was requesting that
the Court consider its motion to quash the warrant to be "analogous" to a motion to
quash a subpoena, denial of which does constitute an appealable order (A21-22). The
court recognized that the manner by which these warrant were executed "deviate[d]
from the traditional" method. However, the court found that any such distinction
was meaningless, and that reliance upon it ignored how searches for and retrieval of
digital information take place (A23-24).
The court acknowledged Facebook's express concern that the warrants gave
the People access to large amounts of the account holders' personal data.
Nonetheless, the court reiterated that the warrants had been reviewed by a judge
before they were signed, and that "[j]udges, as guardians of our Constitution, play an
indispensable role in protecting the rights and liberties of individuals entrenched in
the Constitution" (A30). As for Facebook's demand for relief, the court further noted
that Facebook was attempting to "have it both ways." After all, Facebook "want[ed]
the probable cause standard [governing] warrants while retaining the pre-execution
adversary process of subpoenas" (A29). The court found no reason to grant
Facebook greater rights than those afforded its customers under the Constitution
(A30).
-18-
POINT I
THIS COURT DOES NOT HAVE JURISDICTION TO
REVIEW FACEBOOK'S CLAIMS (Answering
Facebook's Brief, Point IC, pp. 32-36).
In its "Statement of Jurisdiction," Facebook cites CPLR §5602(a)(1)(i) as the
basis by which this Court may review its appeal. In fact, though, and as the Appellate
Division, First Department correctly ruled, Facebook is attempting to appeal from a
criminal proceeding, not a civil one, and it is therefore the Criminal Procedure Law
that governs. That statutory scheme provides Facebook with no right to appeal.
Thus, the entirety of Facebook's appeal must be dismissed.
As to Facebook's attacks on the nondisclosure order, Facebook must overcome
a second hurdle in obtaining review of those claims by this Court. That nondisclosure
order was lifted and Facebook has been able to inform all of the account holders that
search warrants were executed on their accounts. Given these events, that portion of
Facebook's appeal is moot and must be dismissed for that reason as well.
A. Because The Criminal Procedure Law Does Not Authorize Appeals To Be
Taken From Orders Denying Motions Made In Connection With Search
Warrants, Facebook's Appeal Must Be Dismissed.
We start with Facebook's assertion that it is appealing from a civil, rather than a
criminal, matter. Facebook is incorrect. It is axiomatic that in the absence of express
statutory authorization, there is no right to appeal in a criminal case. People v. Bautista,
7 N.Y.3d 838 (2006); People v. DeJesus, 54 N.Y.2d 447, 449 (1981). That statutory
authorization is located in the Criminal Procedure Law (CPL). People v. Santos, 64
-19-
N.Y.2d 702, (1984). The right to appeal from a civil proceeding is governed by the
Civil Procedure Laws and Rules (CPLR).
In order to determine whether the appeal is governed by the CPL or the CPLR,
the court must look to the proceeding from which a party is seeking to appeal. The
CPL defines whether an action is a criminal proceeding. Pursuant to CPL 1.20(18),
such a proceeding includes those that "occur in a criminal court and [are] related to a
prospective, pending or completed criminal action either of this state or of any
jurisdiction, or involve[] a criminal investigation." Here, Facebook appeals from
orders issued in connection with search warrants pertaining to a criminal
investigation. This Court has previously held that search warrants are criminal
proceedings. Matter of Newsday v. Morgenthau, 3 N.Y.3d 651 (2004); see also Matter of
Santangello v. People, 38 N.Y.2d 536 (1976).
Thus, Facebook may pursue its appeal only from those orders if it is authorized
to do so by the CPL. By its terms, however, CPL Article 450 grants appellate rights
only to a "defendant" or "the People." See, e.g., CPL 450.10, 450.20. Of course,
Facebook is neither. Because the CPL provides no appellate remedy to third parties,
Facebook simply cannot bring an appeal in a criminal case.
Even if Facebook were eligible to appeal an order in a criminal proceeding, it
could not appeal the orders at issue in this case because they are non-appealable
orders. CPL 450.10 grants a defendant an appeal as of right from a "judgment," CPL
450.10(1), a "sentence," CPL 450.10(2), (3), or orders denying a motion made
-20-
pursuant to CPL 440.40 (to set aside a sentence) or CPL 440.30 (DNA testing). See
CPL 450.10(4), (5). CPL 450.15 grants a defendant the right to seek permission to
appeal from orders denying motions pursuant to CPL 440.10 and 440.20, and from
sentences that are not otherwise appealable as of right.
An order issued in connection with a search warrant does not fit into any of
these categories and thus, as this Court has previously held, is not an appealable order.
Matter of Newsday v. Morgenthau, 3 N.Y.3d at 652; Matter of ADA Merri Bernstein (Tom's
Associates), 67 N.Y.2d 852 (1986); see also Alphonse C. v. Morgenthau, 38 N.Y.2d 923
(1976) (because lineup orders were issued in a criminal investigation, there was no
statutory authority granting appellate review). Indeed, this Court's decision in Matter
of Newsday irrefutably resolves the issue. There, Newsday as a third party attempted
"to intervene in a criminal proceeding to obtain records supporting issuance of a
search warrant." 3 N.Y.3d at 652. This Court concluded that Newsday's request
constituted an "application 'involving a criminal investigation and the proceeding in
which the order was issued was therefore a criminal proceeding.'" Id.; citing Alphonse C.
v. Morgenthau, 38 N.Y.2d at 924-25. Thus, this Court dismissed Newsday's appeal
from the denial of its request. 3 N.Y.3d at 652. Facebook, like Newsday, is seeking
to involve itself in the criminal process by quashing warrants and seeking the
document supporting those warrants. Matter of Newsday controls the outcome here.
Put simply, then, the Appellate Division's determination that Facebook was not
entitled to appeal from either of the orders denying its motions made in connection
-21-
with these search warrants is unassailable. And, as this Court has recognized, if a
party does not have the right to appeal to the intermediate appellate court, it similarly
has no right of appellate review before this Court under CPL 450.90. See Matter of
Newsday v. Morgenthau, 3 N.Y.3d at 652 (where order was not appealable to Appellate
Division, appeal to the Court of Appeals was dismissed); Alphonse C. v. Morgenthau,
supra (dismissing appeal to the Court of Appeals because lineup order was not an
appealable order); see also CPL 460.20. Thus, Facebook's appeal to this Court from
the Appellate Division's order must be dismissed.
Facebook recognizes the strict limitations on criminal appeals. Citing to 18
U.S.C. 2703(g), however, Facebook notes that the search warrants at issue here, like
most search warrants served on service providers, were not executed by a law
enforcement officer, but instead were sent to Facebook with the understanding that
Facebook would download the requested materials and send them to the District
Attorney's Office (FB at 34). Thus, Facebook argues, the search warrants were more
akin to subpoenas, which are served on a third party who then collects and delivers
the items listed in the subpoenas to the relevant government actor. Facebook notes
that this Court has long held that a nonparty to the criminal action may appeal from
an order in connection with a motion to quash a subpoena, even if that subpoena was
issued in a criminal matter. See People v. Santos, 64 N.Y.2d at 702; Cunningham v.
Nadjari, 39 N.Y.2d 314 (1976). Facebook maintains that this Court should therefore
treat these warrants like subpoenas and grant Facebook the right to pursue its appeal.
-22-
It is certainly the case that, since 1936, this Court has permitted direct appeal of
orders denying third-party motions to quash subpoenas issued in criminal cases on the
ground that "'they were final orders in special proceedings on the civil side of a court
vested with civil jurisdiction.'" Matter of Newsday, 3 N.Y.3d at 652, fn., citing Cunningham
v. Nadjari, 39 N.Y.2d at 371. In Cunningham, this Court acknowledged that the
"analytic base" for extending appellate review to these orders was "peculiar" but
believed that "on a basis of stare decisis these precedents represent a formidable line
of authority, however asymmetrical may appear to be the support for the rule they
express and apply." 39 N.Y.2d at 317, quoted in Newsday, 3 N.Y.3d at 652. Facebook's
attempts to convert what are plainly search warrants into subpoenas and thus take
advantage of this "peculiar analytical base" for appellate review of motions to quash
subpoenas issued in criminal matters must be rejected.
There is no doubt that these were warrants. Warrants may not issue except
when supported by "oath or affirmation," People v. Sullivan, 56 N.Y.2d 378, 382 (1982),
that demonstrates probable cause to believe that a crime has been committed and that
evidence of that criminality will be found in the place to be searched. People v. Hetrick,
80 N.Y.2d 344, 348 (1992). Further, the affidavit must be submitted to a neutral and
detached magistrate who reviews it to determine whether it satisfies the probable
cause requirement. People v. Potwora, 48 N.Y.2d 91, 94 (1979); see People v. Bilsky, 95
N.Y.2d 172, 176 (2000). Here, that is precisely what happened. The prosecutor
submitted an affidavit from the investigator to Justice Jackson. As she explained in
-23-
her order dismissing Facebook's motion to quash, Justice Jackson reviewed the
affidavit to determine whether or not it demonstrated probable cause. Then, because
the judge determined that it had, she signed the warrants.
A subpoena is a different process from a warrant with significantly different
requirements and far fewer restrictions. Here, because the warrants were issued prior
to indictment, the only type of subpoena available for use by the prosecutor at that
point was a grand jury subpoena. A grand jury subpoena is not issued by a judge but
is issued by the grand jury itself. Moreover, the grand jury may issue the subpoena so
long as the materials that it seeks are merely relevant to its investigation. There is no
requirement that probable cause be established before a subpoena can issue. In re
Nassau County Grand Jury, 4 N.Y.3d 665, 677 (2005); In re Grand Jury Subpoenas for Locals
17, 135, 257 & 608 of the United Brotherhood of Carpenters and Joiners, 72 N.Y.3d 307
(1988); Hynes v. Moskowitz, 44 N.Y.2d 383 (1978). And, as to relevancy, this Court has
explained that:
in the context of a Grand jury investigation, relevancy is a
concept not as easily susceptible to definition or delineation
as in the area of evidence at trial. In large part, this is due
to the manner in which a Grand Jury operates. As one
court has observed, "[A] grand jury has no catalog of what
books and papers exist and are involved in a situation with
which it is attempting to deal, nor will it ordinarily have any
basis for knowing what their character or contents
immediately are. It can therefore hardly be expected to be
able to designate or call for what its exact needs may
ultimately turn out to be. * * * [It] obviously has a right * *
* to a fair margin of reach and material in seeking
information, not merely direct but also a matter of possible
-24-
light on seemingly related aspects whose significance it is
seeking to uncover." . . . Thus, insofar as Grand Jury
subpoenas duces tecum are concerned, relevance is
necessarily a term of broader import than when applied to
evidence at trial.
Vinag v. Hynes, 54 N.Y.2d 437, 444 (1981). Furthermore, a grand jury subpoena
enjoys a presumption of validity that requires the party challenging it to demonstrate,
by concrete evidence, that the materials sought have no relation to the matter under
investigation. Id. at 444.
Plainly, as the warrants here were issued by a judge based on a showing of
probable cause, they were search warrants, and not subpoenas. The manner in which
Facebook has litigated this case proves the point. Facebook has never argued that the
warrants failed to satisfy the minimal relevancy requirements applicable to subpoenas.
Rather, before the trial court and here, Facebook has attacked the warrants as failing
to establish probable cause. It has also raised the related Fourth Amendment issues
of particularity and overbreadth. Those claims pertain only to attacks on search
warrants and present no basis for challenging subpoenas. See In re Grand Jury
Proceedings, 115 F.3d 1240, 1244 (5th Cir. 1997).
In seeking to recast the warrants as subpoenas, Facebook must have recognized
that it could not sustain its high burden to quash a subpoena. After all, as the warrants
were reviewed by a neutral and detached magistrate, there has already been a finding
that, at the very least, the items requested were relevant to the ongoing investigation.
Thus, as the Appellate Division highlighted (A29), Facebook is seeking to have it both
-25-
ways. It has sought to treat the warrants like grand jury subpoenas, so that it could
appeal from the orders and, at the same time, it has sought to treat the warrants like
warrants to which the rigorous requirements of the Fourth Amendment apply.
Facebook's transparent bait and switch tactic, wholly unsupported by statutory or case
law, should be rejected out of hand.
Facebook's arguments that the warrants were actually subpoenas also fly in the
face of federal statutory law, which clearly distinguishes between search warrants and
subpoenas and makes plain that Justice Jackson issued warrants. A brief review of the
federal statutory scheme makes that apparent. In 1986, Congress enacted the
Electronic Communications Privacy Act (the ECPA), 18 U.S.C. 2701, et seq., as an
amendment to Title III of the Omnibus Crime Control and Safe Streets Act, i.e., the
Federal Wiretap Law. S. Rep. No. 99-541 at 1 (1986). The ECPA, which has since
been amended on several occasions and is now entitled the SCA, was intended, in
part, to extend Fourth Amendment type protections to certain electronic data that
was stored with third parties. Sams v. Yahoo! Inc., 713 F.3d 1175 (9th Cir. 2013); In The
Matter Of A Warrant To Search A Certain Email Account Controlled And Maintained By
Microsoft Corporation, 15 F.Supp.3d 466, 471 (S.D.N.Y. 2014). New York has not
enacted its own comparable SCA.
As is relevant here, 18 U.S.C. 2703, which is entitled "Required disclosure of
customer communications or records," governs the circumstances under which the
federal and state governments may compel certain service providers, including
-26-
Facebook, to disclose its records.7 Section 2703(a) states that a governmental entity
may compel the provider of an electronic communication service to disclose the
contents of wire or electronic communications that have been held in electronic
storage for less than 180 days only through the use of a "warrant issued using the
procedures described in the Federal Rules of Criminal Procedure (or, in the case of a
State court, issued using State warrant procedures). . . " (emphasis supplied). When those
communications are older than 180 days, the government may use a subpoena; a state
prosecutor may use a grand jury or trial subpoena. §2703(a) and (b)(A) and (B).
When proceeding by subpoena in accordance with these sections, the government
must notify the subscriber or customer that it is seeking this information or obtain an
order pursuant to 18 U.S.C. 2705 permitting it to delay notice. See 18 U.S.C.
2705(a)(1)(A) and (B).
7 That section sets out the rules that apply to electronic communication services,
which are defined as services that provide to their users the ability to send or receive wire or
electronic communications, 18 U.S.C. 2510 (15). The rules also apply to remote computing
services, which are defined as those that provide "computer storage or processing services."
18 U.S.C. 2711(2). As discussed in text, the rules governing the two services are slightly
different in some contexts; those distinctions are of no moment here, however, as Facebook
is considered both an electronic communication service and a remote computing service.
United States v. Martin, 2015 U.S. Dist. LEXIS 94754 (D.Ariz. 2015); see also Glazer v. Fireman's
Fund Ins Co., 2012 U.S. Dist. LEXIS 51658 (S.D.N.Y. 2012) (courts have found that social
networking sites are either electronic communications service providers or remote
computing services or both). Moreover, because the District Attorney's Office was seeking
access to the content of the communications stored on Facebook's server, under either
definition, the People were required to obtain a warrant.
-27-
Section 2703(b) dictates how the government may obtain information from a
remote computing service. Pursuant to Section 2703(b), the government may obtain
the content of a communication pursuant to a warrant without providing notice to the
subscriber. 18 U.S.C. 2703(b)(1)(A). The government may also obtain this content by
subpoena or by an order issued pursuant to 18 U.S.C. 2703(d), but if the government
utilizes either of those options, it must provide notice to the subscriber or customer
or seek a postponement of notice pursuant to 18 U.S.C. 2705. 18 U.S.C.
2703(b)(1)(B).
The statutory language of 18 U.S.C. 2703 makes clear that Congress recognized
the critical differences between warrants and subpoenas and intended that these
differences be maintained. The fact that the statute speaks in terms of different types
of process is fatal to Facebook's claim. Under traditional tools of statutory
construction, it is presumed that when Congress employs different words within the
same statutory scheme, the choice is deliberate and those terms should be given
different meanings. Doe v. Backpage.com LLC, 2016 U.S. App. LEXIS 4671 (1st Cir.
2016), citing Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n. 9 (2004). Congress chose to
require warrants in certain instances and to permit the use of subpoenas in others -- a
choice that demonstrates that Congress recognized the differences between the two
and did not intend to convert one into the other.
Here, the People were seeking information that included the content of
communications. Because some of that content was less than 180 days old, the
-28-
People were required to obtain search warrants, 18 U.S.C. 2703(a), upon a neutral
magistrate's determination that they had established probable cause. That should
resolve the issue here: Facebook's appeal must be dismissed because it is seeking to
appeal orders issued in connection with search warrants which, as readily
demonstrated, are non-appealable orders.
Facebook, however, turns to 18 U.S.C. 2703(g). That section states that:
. . . the presence of an officer shall not be required for
service or execution of a search warrant issued in
accordance with this chapter requiring disclosure by a
provider of electronic communications service or remote
computing service of the contents of communications or
records or other information pertaining to a subscriber to
or customer of such service.
Thus, that section permits the service provider itself to locate the communications
requested and provide them to the government. Facebook insists that this procedural
difference from the normal manner of search warrant execution, in which a law
enforcement officer conducts the search, transforms an SCA-compliant warrant into a
subpoena, where third parties are the ones who comply by collecting the information
and disclosing it to the issuer of the subpoena.
But, the statutory language on which Facebook relies defeats its claim. After
all, 2703(g) specifically speaks in terms of "a search warrant." Given that, as
demonstrated, the SCA clearly distinguishes between search warrants and subpoenas,
that clause makes it inescapably clear that Congress still required the government to
-29-
obtain warrants, and considered 2703(g) as no more than a procedural nod to the
realities of how an SCA-compliant warrant is actually executed.
Congress's determination makes sense. Given the nature of electronic
communications, a great deal of technical assistance must be provided by the service
provider when served with a search warrant. In fact, as the Appellate Division
observed, it is difficult to perceive "how a law enforcement officer could play a useful
role in the Internet service provider's retrieval of the specified online information"
(A24). In recognition of that fact, and in order to save the states and the Federal
government the expense of requiring law enforcement agents to travel to wherever
the data is stored, Congress enacted this provision, which removes the obligation on
the part of the government to conduct the search. But that by no means has
transformed the warrant into a subpoena.
At least one federal court has reviewed these procedural differences between
the execution of an SCA-compliant warrant and a traditional warrant and found them
to be without legal significance. In United States v. Bach, 310 F.3d 1063 (8th Cir. 2002),
state officials faxed a warrant to Yahoo in California for the defendant's emails.
Yahoo technicians then downloaded the entirety of the defendant's account onto a
disk and provided it to the officer who had applied for the warrant. Those emails
contained evidence of child pornography. Id. at 1065. The case was ultimately
prosecuted in federal court. A district judge held that the seizure of these emails by a
civilian technician violated the Fourth Amendment and suppressed them. Id. In
-30-
reversing, the Eighth Circuit found that, in fact, the Fourth Amendment "does not
explicitly require official presence during a warrant's execution." Id. at 1066. The
court acknowledged that law enforcement officers for the most part served service
providers with warrants in much the same manner the warrant in this case was served
on Facebook: they faxed them to the provider. The court rejected the idea that this
method of service transformed a search warrant into a subpoena: the court sensibly
reasoned that "Congress called them warrants and we find that Congress intended
them to be treated as warrants." Id. at 1066, fn. 1.
Nonetheless, Facebook turns to comments made by a magistrate judge in In
The Matter Of A Warrant To Search A Certain E-mail Account Controlled And Maintained By
Microsoft Corporation (Microsoft Corp.), 15 F.Supp.3d at 466. That magistrate judge
remarked that a 2703(a) warrant is a "hybrid: part search warrant and part subpoena,"
as it is "obtained like a search warrant when an application is made to a neutral
magistrate who issues the order only upon a showing of probable cause," but is
"executed like a subpoena in that it is served on the ISP [internet service provider] in
possession of the information and does not involve government agents entering the
premises of the ISP to search its servers and seize the e-mail account in question." Id.
at 471-72 (FB at 21). The magistrate judge found that the fact that the warrant was
executed like a subpoena supported the prosecutor's view that the SCA did not
implicate principles of extraterritoriality, even when, as in that case, the information
sought was stored on servers located in another country. Id. Nothing the magistrate
-31-
judge said indicated that an SCA-compliant warrant was somehow not a warrant in a
substantive sense. On the contrary, the magistrate judge stressed that its analysis was
not inconsistent with the Eighth Circuit's reasoning in Bach, nor with the magistrate's
own review of the SCA-compliant warrant. Id. at 472. Simply put, Facebook's
insistence that this section of the SCA turns search warrants into subpoenas finds no
support in either the statute itself or case law.
In a last-ditch effort to stand the rules of appealability on their head, Facebook
claims that it is necessary to permit Facebook to act to safeguard the rights of not just
the targets of these warrants, but the millions of other users of social media who
might find themselves targeted (FB at 30). Facebook insists that without its
intervention, the warrants will be "insulate[d]" from judicial review (FB at 36). First
and foremost, this assertion is beside the point because, as discussed in Point II, infra,
Facebook is not entitled under either statutory or constitutional law to raise the
challenges to the warrants it attempts to mount. Thus, whether or not the trial courts'
orders constituted appealable orders, Facebook would still not be able to fulfill its
self-proclaimed role as the dogged protector of the privacy interests of its users.
Furthermore, the underlying premise of Facebook's claim -- that search
warrants like the one at issue here will evade judicial review -- is entirely wrong. To
begin, as the Appellate Division emphasized, the warrant requirement itself provides
protections to the users of Facebook and other social media. A judge must review the
warrant affidavit and must refuse to sign the warrant if it is not supported by probable
-32-
cause and is not otherwise constitutionally and statutorily sound. Beyond that, the
subjects of the warrants had and have ample opportunity to challenge the warrants.
Sixty-two of the targeted users were ultimately indicted, and each of those defendants
was able to contest the constitutionality of the warrant by moving to suppress the
fruits of the search. See CPL 710.20(2). While some of those users opted not to do
so, and instead chose to plead guilty, that does not alter or diminish their right to have
sought judicial review.8
And, contrary to Facebook's implications, the non-indicted users were not
foreclosed from protesting any purported invasion of their privacy. All of the account
holders may avail themselves of 18 U.S.C. 2707, which provides a cause of action to a
subscriber against any person who knowingly or intentionally violates provisions of
the SCA. As the Appellate Division recognized (A19 n. 3), all the account holders
may also pursue a civil rights action pursuant to 42 U.S.C. 1983 for any Fourth
Amendment violations. That is the usual remedy for targets of constitutionally-
defective search warrants who are not prosecuted, and there is no reason to believe
that this avenue for relief is any less vital when those warrants are issued in
connection with electronic data.
8 Of course, a defendant who pleads guilty can still appeal from the denial of a
suppression motion. See CPL 710.70(2). Thus, Facebook's apparent assumption that a guilty
plea is incompatible with a challenge to the warrant (FB at 36) is incorrect.
-33-
B. Facebook's Complaint About The Issuance Of The Protective Order is Moot.
Facebook's appeal from the trial court's non-disclosure order faces a second,
insurmountable hurdle. It is moot. This Court is precluded from considering
questions which, although once considered live controversies, have become moot by
the passage of time or change of circumstances. City of New York v. Maul, 14 N.Y.3d
499 (2010); Hearst Corp. v. Clyne, 50 N.Y.2d 707 (1980). Thus, where the rights of the
parties will not be affected directly by the judgment, the appeal will be considered
moot, and this Court will decline to hear it. Matter of Veronica P. v. Radcliff A., 24
N.Y.3d 668 (2015).
Here, the non-disclosure order about which Facebook complains was lifted in
its entirety even before the case was heard by the Appellate Division. In 2014, the
People informed the trial court that there was no reason to continue to seal the fact
that warrants had been issued and executed, and the court permitted Facebook to
notify all of the targeted account holders about the search of their accounts. Because
this now-rescinded order forms the basis for Facebook's complaint that its First
Amendment rights were violated, that claim is moot: any ruling by this Court on its
propriety will not impact the rights of either Facebook or the District Attorney's
Office. This Court therefore may not review Facebook's complaints about the order.
In re Grand Jury Subpoenas for Locals 17, 135, 257 and 608, 72 N.Y.2d at 311.
In a footnote, Facebook notes that the Appellate Division did not view this
case as moot, and then argues that, in fact, the rights of the parties will be affected by
-34-
the appeal. It offers that, if it prevails on this appeal, the Government will be required
to return the seized information and disclose the investigator's affidavit (FB at 36, fn.
6). Facebook does not discuss at all what rights are left to be adjudicated in
connection with the nondisclosure order. That is, quite simply, because there are
none. Thus, that portion of Facebook's appeal from that order is not properly before
this Court.
* * * *
In sum, Facebook's appeal should be dismissed.
POINT II
FACEBOOK DOES NOT HAVE STANDING TO
RAISE THE CLAIMS THAT IT IS MAKING ON
BEHALF OF THE ACCOUNT HOLDERS. IN ANY
EVENT, EVEN A PARTY MAY NOT RAISE AN
ATTACK ON A WARRANT PRIOR TO ITS
EXECUTION (Answering Facebook's Brief, Points IIA
and III, pp. 37-46, 49-54).
Even if this Court were to determine that it could review the trial court's ruling
denying Facebook's motion to quash, Facebook would still be unable to prevail on its
claim that the warrants violated the Fourth Amendment. Facebook had sought to
prevent the People from executing the warrants by arguing that the warrants did not
satisfy Fourth Amendment requirements. But, as the Appellate Division stressed,
there is no basis to contest a warrant prior to its execution. And, in any event,
Facebook was not entitled to raise Fourth Amendment claims on behalf of its users.
Fourth Amendment rights are personal rights and violations of those rights may only
-35-
be protested by those who are harmed directly. They may not be raised by third
parties. Neither the statutes of this State nor the federal statutes upset those basic
principles by affording Facebook standing to make the attacks it has launched against
the warrants.
A.
Facebook contends that it was entitled to bring its motion to quash in order to
prevent the execution of warrants that violated both Article 1, §12 of the New York
Constitution and the Fourth Amendment. A suppression motion pursuant to
Criminal Procedure Law Article 710 is the "exclusive method" for raising claims about
constitutional violations in connection with the acquisition of evidence related to a
criminal case. CPL 710.70(3). And, CPL 710.20, which lists the grounds for
suppression motions, mandates that the person bringing such a motion is a defendant
who is "aggrieved by unlawful or improper acquisition of evidence and has reasonable
cause to believe that such may be offered against him in a criminal action" (emphasis
supplied). Of course, these requirements cannot be met unless the warrant was
actually executed and evidence was collected. In other words, as the Appellate
Division emphasized (A14-15), the CPL does not permit even a criminal defendant to
move to controvert a search warrant prior to its execution. Since Facebook sought
relief for which there was no statutory basis, the trial court properly dismissed its
motion to quash.
-36-
B.
Facebook also was not the proper party to raise these attacks. The CPL was
intentionally drafted to ensure that only criminal defendants, and no one else, could
raise suppression claims. CPL Article 700 continually refers to a motion by a
"defendant" to suppress evidence. See, e.g., CPL 710.20. "Under the former Code of
Criminal Procedure . . . a 'person aggrieved' by a search, whether a defendant or not,
could bring such a challenge. The new CPL was intentionally drafted to limit the
motion to a 'defendant.'" In re Application for Search Warrant, 108 Misc. 2d 440, 445
(Kings Co. 1981), citing Denzer, Practice Commentary, McKinney's Cons. Laws of NY,
Book 11A, CPL 710.10, 710.20, 710.40.
Even apart from New York's controlling statutes, Facebook cannot raise its
claims as a matter of substantive Fourth Amendment law. The United States
Supreme Court has long ruled that the Federal Constitution grants "aggrieved
defendants" the right to move to suppress evidence for Fourth Amendment
violations. As that Court has explained, the Fourth Amendment "protects persons
against unreasonable searches" and is therefore a "personal right that must be invoked
by an individual." Minnesota v. Carter, 525 U.S. 83, 88 (1998). Thus, a person asserting
protections under that amendment must show that he has suffered an invasion of his
or her own legitimate expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 105
(1980). Critically, these personal rights may not be vicariously asserted. Plumhoff v.
-37-
Rickard, __ U.S. __, 134 S.Ct. 2012 (2014); see also Rakas v. Illinois, 439 U.S. 128, 133
(1978); Alderman v. United States, 394 U.S. 165, 174 (1969).
This Court has imposed the same requirement. This Court has stated that "in
this State, as in the Federal Courts," it is the rule both that Fourth Amendment rights
are personal rights and that the exclusionary remedy for Fourth Amendment
violations is "limit[ed] to . . . persons whose own protection has been infringed by the
search and seizure." People v. Wesley, 73 N.Y.2d 351, 355 (1989). Toward that end, this
Court, like the Supreme Court, has required that a defendant seeking suppression of
evidence must establish "standing" by demonstrating a legitimate expectation of
privacy in the premises or object searched. See e.g. People v. Burton, 6 N.Y.3d 584, 687
(2006); People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108-09 (1996), citing Rawlings v.
Kentucky, 448 U.S. at 106.
Facebook has never argued that its own privacy interests were violated by
executions of the warrants. Nor could it. After all, these were not accounts created
by Facebook for Facebook. These profile pages were created by the account holders
who posted their own thoughts, pictures and other information on them. It was the
account holders' privacy that was arguably impacted by these warrants and only those
account holders may complain about any purported infringement of their right. Since
Facebook does not have standing to contest the evidence seized, it was not entitled to
bring the action that it did on behalf of the account holders.
-38-
It would make no sense to permit a third party such as Facebook to litigate
broad privacy claims on behalf of its users. As Facebook explained to Justice Jackson,
Facebook permits users to customize their privacy settings so that different users may
well have different privacy rights in their postings (A117-20, A122). Thus, there
would have to be specific litigation regarding each user to determine, as a threshold
matter, whether or not that user had any Fourth Amendment rights in any specific
items seized. After all, if a particular user's settings were all public, then whether or
not the People obtained those postings via a warrant, the user would not have a
suppression remedy because the user had no reasonable expectation of privacy in the
postings.
Facebook, however, insists that "well-settled principles of third-party standing,"
in fact, do permit it to step in for its users to litigate the propriety of the search
warrants. Toward that end, Facebook cites to a number of cases that, it maintains,
grant it this right. For instance, Facebook relies on this Court's decision in Sierra Club
v. Village Of Painted Post, 26 N.Y.3d 301, 311 (2015), and more particularly this Court's
statement in that case that it was reluctant to apply standing principles in an overly
restrictive manner (FB at 28). In fact, that case does not aid Facebook's cause. There,
this Court was reviewing whether a person who suffered the same harm as the rest of
a village in connection with a bulk water sales agreement entered into between the
village and a subsidiary of Shell Oil had standing to bring an Article 78 proceeding
against the village. The Court found that the Appellate Division erred in its
-39-
determination that only someone who suffered a unique harm had standing. Thus,
when this Court cautioned against applying standing rules in an overly restrictive way,
it was referring to the requirement that the plaintiff allege an injury that was different
from that of the public at large. Id. at 310-11. This Court did not state that a person
who did not suffer an injury could raise a claim on behalf of a person who did.
Certainly, this Court did nothing to imply that it was now reading third-party standing
into Fourth Amendment jurisprudence.
Not to be deterred, Facebook asks this Court to apply a test devised by the
Appellate Division in New York County Lawyers' Association v. New York, 294 A.D.2d 69
(1st Dept. 2002) to the case at bar (FB at 29). However, that case involved a suit
brought by the New York County Lawyers' Association against New York state
challenging the rate of compensation for assigned counsel. The County Lawyers'
Association was standing in for its members. Thus, the analysis applied by the
Appellate Division granting the plaintiffs standing simply has no relationship to, or
bearing on, Facebook's attempt to litigate the Fourth Amendment rights of its users,
rights that have always been found to be strictly personal.9
9 Facebook cites to several other cases to support its claim that it is entitled to litigate
the constitutionality of the warrants on behalf of its users. Those cases also do not concern
Fourth Amendment issues, and thus do not merit further comment. See In re Verizon Internet
Services, Inc., 257 F.Supp.2d 244 (D.D.C. 2003) (FB at 27) (as the Supreme Court has altered
its traditional rules of standing to permit a third party to raise a claim that an overly broad
statute infringes on the First Amendment rights of another, Verizon had standing to bring a
First Amendment claim on behalf of its users); see also NAACP v. Alabama ex rel. Patterson,
-40-
(Continued…)
C.
Next, Facebook argues that 18 U.S.C. 2703(d) permitted it to attack the
constitutionality of the search warrants (FB at 20-24). That argument is completely
misguided.
18 U.S.C. 2703(d), states that :
A court order under subsection (b) or (c) may be issued by
any court that is a court of competent jurisdiction and shall
issue only if the governmental entity offers specific and
articulable facts showing that there are reasonable grounds
to believe that the contents of a wire or electronic
communication, or the records or other information
sought, are relevant and material to an ongoing criminal
investigation. In the case of a State governmental
authority, such a court order shall not issue if prohibited by
the law of such State. A court issuing an order pursuant to
this section, on a motion made promptly by the service
provider, may quash or modify such order, if the information
or records requested are unusually voluminous in nature or compliance
with such order otherwise would cause an undue burden on such
provider.
(emphasis supplied).10
357 U.S. 449 (1958) (finding that NAACP could properly represent its members in arguing
that Alabama's subpoena for the organization's member list violated the members' due
process protections); Craig v. Boren, 429 U.S. 190 (1976) (because appellee, a female vendor
of 3.2 beer, had her own claim against enforcement of law prohibiting sale of 3.2 beer to
men under the age of 21 while prohibiting sale to women under the age of 18, she had
standing to raise equal protection claim of the third party men under 21 seeking to purchase
beer).
10 As already detailed, subsection (b) regulates when the government may obtain the
contents of stored communications in a remote computing service. Subsection (c) governs
the methods by which the government may obtain non-content records from both an
electronic communication service and a remote computing service.
-41-
______________________
(…Continued)
As its plain language makes clear, this section does not permit a service
provider to raise its customers' Fourth Amendment claims. Rather, it limits the
challenges that a service provider can make to complaints that the requested materials
are "unusually voluminous," or that fulfilling the requests would cause an "undue
burden" on the provider. United States v. Applebaum, 707 F.3d 283 (4th Cir. 2013)
(Section 2703[d] proceedings may consist of a motion to the provider to quash or
modify the 2703[d] order as unduly burdensome).11 It makes sense that the SCA
would permit a provider to raise those claims because, unlike the Fourth Amendment
claims Facebook has tried to raise, such claims actually concern tangible and
cognizable harms to the provider itself.
Facebook's resort to In re Directives to Yahoo! Inc., Pursuant to Section 105B of the
Foreign Intelligence Surveillance Act, 2008 WL 10632524 (FISA Court 2008) (Facebook's
Brief at 26) actually undermines its arguments. There, the Foreign Intelligence
Surveillance court did grant Yahoo standing to raise Fourth Amendment claims on
behalf of its users. But, that court did so because it concluded that the Protect
America Act, which was an amendment to the Foreign Intelligence Surveillance Act
11 Facebook complains that the Appellate Division erroneously interpreted the
provisions permitting motions to quash pursuant to Section 2703(d) as limited to non-search
warrant orders. Facebook insists that phrase "under this section," referred to all orders
issued pursuant to Section 2703, including warrants (FB at 24). We need not debate this
interpretation since, even if Facebook is correct, Facebook may still only raise a complaint
about the burdensome nature of the order, and is not entitled to raise Fourth Amendment
claims on behalf of its subscribers.
-42-
(FISA), expressly permitted such third party standing. That statute states that a
service provider receiving a directive under FISA to assist in the collection of
evidence "may challenge the legality of that directive." Id. at *3, quoting 50 U.S.C.
1805(h)(1)(A). The FISA court determined that this language was broad enough to
encompass Fourth Amendment claims brought by the providers. Id. As that statute
makes clear, Congress certainly knew how to draft legislation to authorize substantive
attacks on court orders when it wished to do so. That it chose not to use that
expansive language in the SCA, but instead allowed for claims that go only to practical
compliance problems faced by the providers themselves, demonstrates that it did not
intend to enable third parties to contest SCA warrants on Fourth Amendment
grounds on behalf of its users.
Facebook has never advanced either of the two claims permitted by Section
2703(d) of the SCA. Facebook has certainly mentioned in a critical tone the amount
of information that was sought (see, e.g., FB at 12, 39, 41). However, it never raised, as
a ground for its motion to quash, the "voluminous" nature of the request. Even now,
Facebook carps only that the warrants call for "burdensome searches of users'
accounts" (FB at 27). It never alleged that the search would be unduly burdensome to
Facebook, much less that the searches at issue here were more burdensome than the
usual searches.
Nonetheless, Facebook now attempts to find a justiciable harm that would
allow it to invoke Section 2703(d)'s statutory grant of authorization to contest the
-43-
order. It asserts that it was burdened in a sense consistent with FISA in that it
"carr[ied] out a search that violates the constitutional rights of hundreds of its users,
who trust Facebook to safeguard their personal information from unjustified
governmental seizures" (FB at 27). But, assuming that Facebook means to convey its
discomfort in complying with warrants that have not been challenged in court, that
hardly is enough to give them any sort of standing to challenge them. If a service
provider could challenge a warrant simply by asserting that it was uncomfortable in
complying because it viewed the warrants as defective, then the limitations that
Congress intended to place on the ability of the service provider to contest the legality
of the orders would be completely eviscerated.
Facebook looks to In re Google Email Accounts, 99 F.Supp.3d 992 (D. Alaska
2015), in support of its claim that it was entitled, under 2703(d), to move to quash the
warrants (FB at 24). But, there, the district judge correctly allowed Google to make
such a motion because Google was acting within its statutory rights, by raising a true
claim of undue burden. Specifically, Google complained that it would have been
unduly burdensome to comply with the search warrant because the government
wanted Google to comb through the emails and separate those that were relevant as
delineated in the warrant from those that were not. Google contended that it was not
equipped to comply with such a demand. Id. at 996. The remedy Google requested is
also significant: it asked the court to permit it simply to provide the government with
all the communications in the email account within a certain date range, so that the
-44-
government could then conduct the relevant search itself. Id. The court granted that
request. In other words, Google asked for, and in fact obtained as a remedy, the right
to do what Facebook complains that it was asked to do here: turn over a great deal of
data from its users' accounts to the government so as not to impose too heavy a
burden on Google. That case, then, obviously does not support the proposition that
Facebook can litigate its users' Fourth Amendment claims in derogation of well-
established Fourth Amendment principles.
D.
Thus, Facebook cannot litigate its complaint that "the bulk warrants" violated
its users' Fourth Amendment rights because they were lacking in particularity and
unconstitutionally overbroad (FB at 37). Notably, though, those underlying claims are
unreviewable for an added reason. Facebook spends pages of its brief discussing how
the warrants' demand for "communications in 24 broad categories" demonstrates the
purported defects in the warrants (FB at 41-46). But, the mere fact that the warrant
authorized a search for this amount of information does not establish the defects that
Facebook claims.
A warrant fails to satisfy the particularity requirement if it does not sufficiently
describe the place or persons to be searched and therefore leaves the searching officer
too much discretion. A warrant is overbroad where it grants the executing officers
unfettered discretion "to look anywhere and seize anything they thought 'would be
considered contraband.'" People v. Brown, 96 N.Y.2d 80, 84-85 (2001); People v. Nieves,
-45-
36 N.Y.2d 396, 400-02 (1975); see also United States v. Ninety-Two Thousand Four Hundred
and Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 148-50 (3d Cir. 2002).
However, if the affidavit underlying the warrants established that all of the
communications in the Facebook accounts were relevant to the crimes under
investigation, and the evidence seized was only of the type listed in the warrants, then
the warrants' directive to search for them all was neither overbroad nor lacking in
particularity. See People v. Nieves, 36 N.Y.2d at 402 (in reviewing the warrant to
determine whether it was sufficiently particular, the critical facts for the reviewing
court are those that were made known to the issuing magistrate); People v. Carter, 31
A.D.3d 1167 (4th Dept. 2006) (search overbroad where it allowed police to obtain
evidence not specifically connected to crime); see also United States v. Karrer, 460 Fed.
Appx. 157 (3d Cir. 2012) (the breadth of items to be searched depends upon factual
context of each case). Contrary to Facebook's belief, the mere fact that the warrant
called for "searches for long lists of documents" establishes no Fourth Amendment
violation of any sort. United States v. Ninety-Two Thousand Four Hundred and Twenty-Two
Dollars and Fifty-Seven Cents, 307 F.3d at 148.12
12 In citing Groh v. Ramirez, 540 U.S. 551 (2004), for the proposition that the affidavit
"cannot salvage the defective warrants" (FB at 45 fn. 9), Facebook misses the point: it
cannot be determined whether the warrant was defective in the first place without looking at
the affidavit. Moreover, in that case the warrant failed completely to include a description of
the items to be seized, a lack of particularity so egregious that it rendered the search the
equivalent of a warrantless one. Id. at 557-59. However, Facebook cannot legitimately argue
that the warrants failed to describe the evidence to be seized. After all, Facebook concedes
-46-
(Continued…)
In short, it is impossible to evaluate whether it was appropriate for the court to
authorize a search for the items listed without reviewing the evidence that the
investigator had obtained and the nature of the investigation. Because Facebook was
not entitled to litigate its users' Fourth Amendment claims for the reasons already
stated, it was not provided with the investigator's affidavit. That affidavit is not part
of the appellate record and therefore is not before this Court. Thus, there is nothing
in the record to permit this Court to make the determination sought by Facebook.
People v. McLean, 15 N.Y.3d 117 (2010).
* * * *
In sum, as the lower courts correctly concluded, Facebook is not authorized by
either statutory or constitutional law to bring those claims listed in its "Motion to
Quash" the warrants. Thus, even if this Court determined that Facebook was entitled
to appeal from the dismissal of that motion, Facebook still was not entitled to the
relief sought, because it had no legal basis upon which to seek it.
that the warrants described the various categories of digital information that were to be
collected. Boiled down to its essence, Facebook's argument is that the People could not
have established probable cause to be entitled to this much information; of course, that
argument can only be made with resort to the warrant.
-47-
______________________
(…Continued)
POINT III
FACEBOOK'S ATTACKS ON THE
NONDISCLOSURE ORDER ARE ONLY PARTIALLY
PRESERVED AND ARE COMPLETELY MERITLESS
(Answering Defendant's Brief, Point IIB, pp. 46-49).
Facebook also launches attacks on the portion of the warrants in which the
court directed Facebook "not to notify or otherwise disclose the existence or
execution of this warrant/order to any associated user/account holder" (FB at 46,
quoting Order at A43-44). Facebook makes two claims. First, it asserts that the
nondisclosure order violated the SCA (FB at 46-47). It then insists that the order
violated its First Amendment rights by preventing the company from speaking about
the issuance of the warrants (FB at 47-49). As demonstrated supra, Facebook is not
entitled to raise these claims, as they are appeals from nonappealable orders and the
issues raised are moot.13 In any event, Facebook's constitutional claim is unpreserved.
The statutory and constitutional claims are also meritless, because this limited
13 In its general discussion about standing, Facebook asserts that it had standing to
contest the gag order (FB at 27-28). Insofar as Facebook is arguing that the nondisclosure
order implicated its First Amendment rights, Facebook is correct. But that does nothing to
solve Facebook's problem that the order is simply not appealable. A party can litigate an
issue at the trial level and still be unable to appeal an adverse determination because there is
no statutory authorization for such an appeal. See, e.g., People v. Bautista, 7 N.Y.3d 838 (2006)
(dismissing the defendant's appeal from order denying resentencing under DLRA as the
adverse order did not come within CPL 450.10, 450.15 or 450.20); People v. Liang, 79 N.Y.2d
166 (1992) (finding no statutory authorization permitting the People to appeal from lower
court ruling precluding the use of identification testimony for failure to provide proper
notice).
-48-
nondisclosure order was properly issued and did not impermissibly restrict Facebook's
right of free speech.
First, Facebook never argued to the trial court that what Facebook now
describes as a "permanent gag order" impacted its First Amendment rights. Facebook
made no such claim in its motion to quash; nor did it raise such a claim during the
subsequent hearing that the court held on that motion. Facebook claimed only that
the order violated the SCA (A64-71, A114-49). It is well settled that, in connection
with both criminal and civil matters, in order for this Court to review a claim of error
asserted by a party, the party must have raised the same claim before the trial judge.
CPL 470.05; People v. Coleman, 56 N.Y.2d 269, 270 n. (1982) (the defendant failed to
preserve First Amendment objection to admission of evidence); Matter of Barber v.
Dembroski, 54 N.Y.2d 648, 650 (1981) (First Amendment claim not reviewable because
it was not raised in answer); see also People v. Lieberman, 47 N.Y.2d 931 (1979) (statutory
speedy trial claim did not preserve constitutional speedy trial claim). Given this failure
to raise any First Amendment issue before the trial court, Facebook may not obtain
review of its newly minted claim in this Court.
Even had Facebook properly satisfied its preservation obligations, it would still
be unable to prevail. To begin, Facebook mistakenly describes the nondisclosure
order as a "perpetual gag provision[ ]" (FB at 37) that was to remain in effect "in
perpetuity" (FB at 46). In reality, the court lifted that order as soon as there was no
need for secrecy and permitted Facebook to make the necessary notifications as it saw
-49-
fit. Indeed, Justice Jackson made clear in her order denying Facebook's motion to
quash that the order would remain in effect only until she determined it was no longer
necessary (A110-11). Then, after each indictment was obtained, the People informed
the court of the progress of the case and asked that the order be rescinded as to the
indicted target holders -- requests that the court granted. Thus, it is clear that neither
the People nor the court ever intended for there to be a permanent ban, and that, in
fact, there was no such "perpetual gag" placed on Facebook.
Facebook therefore is simply incorrect in its contention that the issuance of
this temporary order violated the SCA. The relevant statute is the "[d]elayed notice"
provision of the SCA, 18 U.S.C. 2705(b). That section governs "[p]reclusion of notice
to subject of government access," and authorizes the government to obtain a court
order directing the service provider upon whom it serves a warrant, an order issued
pursuant to Section 2703(d), or a subpoena to refrain from notifying the subscriber of
the account that such an order has been obtained and a search is to take place. The
court is only authorized to issue such an order if it finds reason to believe that notice
will result in the destruction of evidence, harm to witnesses, undue delay to the trial or
serious jeopardy to the investigation. 18 U.S.C. 2705(b)(1)-(5). Lastly, the statute
provides that this order is to be "for such period as the court deems appropriate." 18
U.S.C. 2705(b).
Although Facebook argued before the trial court that there was no basis
whatsoever for the court to issue the order, it has since abandoned that claim
-50-
completely. That is understandable given Justice Jackson's explanation that her order
was based on her concerns regarding the precise sorts of harm to the investigation
that were set forth in the statute (A110-11). Instead, Facebook focuses on the fact
that the court's directive preventing Facebook from notifying its customers of the
warrants did not contain a date by which that order would expire. Facebook points to
the words "for such period as the court deems appropriate," and argues that this
language required that the court set a specific date up front for expiration of the gag
order (FB at 46 quoting 18 U.S.C. 2705[b]) (emphasis in brief). As in any case of
statutory construction, this Court must start with the statutory text and proceed from
the understanding that, unless otherwise defined, statutory terms are to be interpreted
in accordance with their ordinary meaning. Sebelius v. Cloer, __ U.S. __, 133 S.Ct. 1886,
1893 (2013); Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246 (1987).
Here, the statute did not require that the court set a specific date, but only imposed an
obligation on the court that it not extend the nondisclosure order past the time that it
deemed it was no longer necessary.
Elsewhere in that same statute, Congress did set firm time limits. For instance,
Sections 2705(a) (A) and (B), under which the government may move to delay its own
notice obligations under 2703(b), states that such notice may be postponed for a
period "not to exceed ninety days." Section 2705(a)(B)(4) then allows the government
to extend those delay of notification orders again for "up to ninety days each." The
fact that Congress chose to put limits of a specific number of days on certain
-51-
nondisclosure orders but not others referenced in Section 2705 demonstrates that
Congress did not intend to require that courts issuing nondisclosure orders pursuant
to Section 2705(b) place firm time limits on the life span of those orders. Doe v.
Backpage.com LLC, 2016 U.S. App. LEXIS 4671.
Facebook's resort to In the Matter of Search Warrant for: [Redacted]@hotmail.com],
74 F.Supp.3d 1184 (N.D.Cal. 2014) (FB at 46) does not further its cause. There, the
magistrate judge voiced concern that the government intended to prevent Hotmail
from ever notifying the account holder of the existence of the warrant, and thus
refused to sign the nondisclosure order until the government provided a date by
which it terminated. Here, Justice Jackson clearly had no such concern. Indeed, by
stating explicitly that her issuance of the order was premised on the harm that
disclosure could cause to the underlying criminal case, Justice Jackson implicitly
recognized that the prosecutor would inform the court when secrecy was no longer
required. Since that is precisely what happened, both the court and the prosecutor
complied with the statutory requirements. See Application for Search Warrant for Email
Account [Name Redacted by The Court] Maintained On Computer Servers Operated By Yahoo!,
Inc. Headquartered At 710 First Avenue, Sunnyvale, CA, 2013 U.S. Dist. LEXIS 73968
(D.D.C. 2013) (granting government's request precluding Yahoo from notifying the
subscriber of the warrant for an unlimited time).
Because the nondisclosure order was not intended to be and was not
permanent, Facebook's unpreserved constitutional claim cannot be sustained. In
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particular, the Supreme Court has upheld regulations permitting judges to prevent
disclosure of information during judicial proceedings. In Seattle Times Co. v. Rhinehart,
467 U.S. 20 (1984), the Court found constitutional the trial judge's imposition of a
protective order, pursuant to Washington's rules of civil discovery, that prevented the
parties from disclosing certain information they had garnered as a result of the
discovery proceeding that was occurring in connection with a civil suit. The Supreme
Court rejected the petitioner's contention that this order constituted an
unconstitutional infringement on its First Amendment rights to disseminate
information learned through discovery. Id. at 31. The Court concluded that "an order
prohibiting dissemination of discovered information before trial" was not the kind of
"classic prior restraint that require[d] exacting First Amendment scrutiny." Id. at 33.
The Court also noted that the rule permitting a trial court to issue a protective order
furthered "a substantial governmental interest unrelated to the suppression of
expression." Id. Since the litigants were able to obtain private information that, if
released, could be damaging to the reputation and privacy of the opposing party, the
government had a legitimate interest in opposing dissemination. Id. at 35.
In criminal matters, there is certainly a strong governmental interest in keeping
secret the use of certain investigative tools until the investigation is at an advanced
stage. After all, if the targets of these investigations became aware that they were
under suspicion, they might well flee, destroy evidence or intimidate witnesses into
refusing to cooperate. These are among the reasons why, for instance, grand jury
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proceedings are secret and grand jurors are prohibited, pursuant to CPL 190.25(4),
from disclosing the nature and substance of grand jury testimony.14 See, e.g., People v.
Fetcho, 91 N.Y.2d 765, 769 (1998); People v. DiNapoli, 27 N.Y.2d 229, 235 (1970); see
also United States v. AppolloMedia Corp., 2000 U.S. App. LEXIS 38754 (5th Cir. 2000)
(freedom to speak and publish, among other First Amendment rights, are limited by
the constitutional rights of defendants to a fair trial as well as by the needs of the
government to obtain just convictions and preserve the identity of their informants).
The SCA requires a prosecutor to demonstrate that a strong governmental
interest exists before he or she can obtain a non-disclosure order. The SCA also
obliges a trial court to make certain findings before ordering nondisclosure, such as
that the investigation will be hindered in some way or that someone's life will be
placed in jeopardy. Once those possibilities no longer exist, the court is directed to
lift the order and permit the service provider to speak about the warrant. Thus, as
required by Rhinehart, the order is narrowly tailored to protect important government
interests.
14 In other instances, as well, the Legislature has enacted laws that either restrict or
permit the courts to restrict the dissemination of information concerning investigations. For
example, CPL 705.30 provides that a court can direct that the person owning the phone line
to which a pen register is attached refrain from "disclos[ing] the existence of the pen register
or trap and trace device or the investigation to the listed subscriber, or to any other person,
unless otherwise ordered to do so." In that same vein, Penal Law Section 250.20 makes it a
crime for a person, not authorized pursuant to CPL 700.65, to disclose to another person
the existence or content of an eavesdropping warrant. See also Boehner v. McDermott, 484 F.3d
573 (D.D.C. 2007) (there are many federal provisions that forbid individuals from disclosing
information, and the validity of these provisions has long been assumed).
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Indeed, here, the People had valid reasons for seeking this nondisclosure order.
The warrants were issued before indictments had been filed and therefore before the
investigation was made public. Had the targets of the warrants learned that the
District Attorney's Office was investigating them, they could well have taken steps to
thwart the investigation, such as destroying incriminating evidence, intimidating
witnesses or speaking with other targets to coordinate false exculpatory narratives.
Those are precisely the sort of potential harms that satisfy the requirements of 18
U.S.C. 2705(b).
Given the nature of the nondisclosure order, Facebook's resort to In Re Sealing
and Non-Disclosure of Pen/Trap, 2703(d) Orders, 562 F.Supp.2d 876 (S.D.Tex. 2008),
which in turn relies on Butterworth v. Smith, 494 U.S. 624 (1990) (FB at 48), is inapt. In
Butterworth, the Supreme Court reviewed a Florida statute that prohibited a witness
from ever revealing his testimony before the grand jury.15 The Court found that,
"insofar as the Florida law prohibit[ed] a grand jury witness from disclosing his own
testimony after the term of the grand jury had ended, it violate[d] the First Amendment. . . ."
494 U.S. at 626 (emphasis supplied). The Court recognized that the government had
a legitimate basis to promote grand jury secrecy. However, the Court rejected the
15 It bears note that, as discussed supra, New York's statute governing grand jury
secrecy specifically exempts witnesses from the nondisclosure provisions. CPL 190.25(4).
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government's assertion that this interest warranted a permanent ban on a witness's
disclosure of his own testimony after the grand jury was discharged. Id. at 632.
In the case of In re Sealing, the magistrate judge was reviewing a request by the
government for an order directing the telephone company to refrain from notifying
the lease holder until further order of the court. The judge did look to Butterworth for
support for its ruling that it could not grant such an open-ended order. 562
F.Supp.2d at 883. Critically, the magistrate did not find that it could not issue the
nondisclosure order at all; rather, the judge determined that he could not leave it
open-ended, as the government asked, but instead needed to set a definite date by
which either the government applied for an extension or the order would be lifted so
the phone company could notify the lease holder. Id. The judge's concern that
without that date the order would become tantamount to a permanent ban, and thus
run afoul of Butterworth, was based on his own survey of what happened in his district
when courts issued nondisclosure orders without including a specific end date. The
judge found that, for the most part, neither the government nor the internet
companies ever returned to court to ask that the bans be lifted, so that disclosure
could be made to the relevant account holders. In other words, he concluded, those
orders became de facto permanent bans. Id. at 880-81. At the risk of repetition, Justice
Jackson had no such concerns, and, in fact, the temporary ban was lifted once it was
no longer necessary.
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In sum, the nondisclosure order that was issued here fully complied with the
SCA and with Federal Constitutional requirements. And, consistent with the dictates
of the SCA, once there was no longer a need to keep the warrants secret, the court
lifted the ban on notification.
POINT IV
FACEBOOK IS NOT ENTITLED TO VIEW THE
INVESTIGATOR'S AFFIDAVIT (Answering Facebook's
Brief, Point III, pp. 49-53).
Lastly, Facebook insists that it is entitled to a copy of the investigator's affidavit
in support of the search warrants. According to Facebook, once the court issued its
unsealing order, Facebook should have been able to view that document. It
complains that "the government's refusal to produce [it] violates the public's right of
access to judicial documents" (FB at 49).
Facebook's claim is wholly unpreserved. Before the trial court, Facebook never
argued, as it does now, that "[u]nder the New York and United States Constitutions
and under common law, the public has a right to access to judicial records and
proceedings" (FB at 49). Rather, Facebook's sole complaint in this regard was that
the People had violated the trial judge's unsealing order by failing to make the
investigator's affidavit accessible to Facebook. Because Facebook made an entirely
different argument to the trial court than the one it advances now, this Court does not
have the power to review this complaint. See CPL 470.05(2); see, e.g., People v. Coleman,
56 N.Y.2d at 270; Matter of Barber v. Dembrowski, 54 N.Y.2d at 650;
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Facebook's claims also fail on the merits. Courts have expressly rejected the
claim that there is a First Amendment right to access search warrant documents. See
Fair Finance v. United States, 692 F.3d 424 (6th Cir. 2012); Times v. Mirror Co. v. United
States, 873 F.2d 1210 (9th Cir. 1989); Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir.
1989); Newsday, Inc. v. Morgenthau, 4 A.D.3d 162 (1st Dept. 2004), appeal dismissed, 3
N.Y.3d at 651; see also United States v. Applebaum, 707 F.3d 283 (4th Cir. 2013) (no First
Amendment right to access of 18 U.S.C. 2703[d] proceedings); In re N.Y. Times Co.,
577 F.3d 401 (2d Cir. 2009) (no First Amendment right of access to sealed wiretap
affidavits).16 These courts have looked to whether "the place and process have
historically been open to the press and general public, and whether public access plays
a significant positive role in the functioning of the particular process in question."
Newsday, Inc. v. Morgenthau, 4 A.D.3d at 163; see also Fair Finance, 692 F.3d at 430
(starting with "historical inquiry" as to whether search warrants were accessible to
public in accessing application of First Amendment to affidavit). First, the courts
have uniformly recognized that such applications are closed to the public and are
conducted ex parte. They have then reasoned that making the application process and
16 The Eighth Circuit in In re Search Warrant for Secretarial Area Outside Office of Gunn,
855 F.2d 569 (8th Cir. 1988), did find a qualified First Amendment right of access to search
warrant documents, but concluded that the government had provided a compelling reason
to deny the request to unseal. In a later case, the Sixth Circuit noted that the Eighth Circuit
case was the only one to hold that there is a First Amendment right of access to search
warrant materials during an ongoing investigation, and then rejected its reasoning. Fair
Finance, 692 F.3d at 433, fn. 3; see also Times Mirror, 873 F.2d at 1217 (rejecting 8th Circuit's
conclusion of a qualified First Amendment right).
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the documents under review during that process publicly accessible would "hinder
rather than facilitate the warrant process." 4 A.D.3d at 163; Times Mirror, 873 F.2d at
1215; Fair Finance, 692 F.3d at 430. Thus, Facebook's attempt to assign First
Amendment protection to its request must fail.
Facebook's common law claim fares no better. Facebook bases its argument
that the public had a common law right to access the underlying affidavit on an
incorrect factual premise, namely that the warrants and affidavit had been unsealed for
all purposes and thus the affidavit was part of the public record. In his order rejecting
Facebook's motion for access to the affidavit, however, Justice FitzGerald made clear
that the document was not part of the public record. Rather, as he emphasized, he had
unsealed the document for the limited purposes of disclosing it at the appropriate
time to the criminal defendants who had been indicted, and the unsealing did not
extend to making the affidavit available to the public. The court also noted that there
were good reasons to limit access to the affidavit. First, "the Affidavit is still being
used in connection with a pending criminal proceeding. . . and it has not yet even
been disclosed to the defendants in that proceeding." Moreover, "disclosure at this
juncture would negatively impact the privacy rights of the individuals named in the
Affidavit who were never indicted . . . . The privacy rights of those individuals must
be superior to the right of a third party who seeks disclosure in connection with an
unrelated proceeding" (A38-39).
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As the court had not lifted the unsealing order in the manner that Facebook
claims here, it cannot advance its common law claim. Both the United States
Supreme Court and this Court have recognized a "common-law right of access" to
"inspect and copy public records and documents, including judicial records and
documents." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978); Crain
Communications, Inc. v. Hughes, 74 N.Y.2d 626 (1989). But, as both the Supreme Court
and this Court made clear, that right exists only when the records are, in fact, public
records. Nixon v. Warner Communications, supra; Newsday Inc., v. Sise, 71 N.Y.2d 146
(1987). And this Court has specifically stated that when the documents have not been
entered into evidence or filed in court they do not fit into that category. Newsday Inc.,
v. Sise, 71 N.Y.2d at 146.
Thus, Facebook's claim fails for the simple reason that the investigator's
affidavit was not a public document. It was not introduced into evidence at a trial or
made part of the court file or any other public record. On the contrary, it was sealed
for any purpose other than discovery to the defendants.
Even when documents are public judicial records, however, this common law
right of access is not absolute. Rather, the courts have supervisory power over their
own records, which includes the right to seal documents when necessary. Nixon v.
Warner Communications, 435 U.S. at 598; Crain Communs., Inc. v. Hughes, 74 N.Y.2d at
626; In re Dorothy D. (Anonymous), 49 N.Y.2d 212, 215 (1980). Thus, whether or not
the common law right of access applies to a particular judicial document is left to the
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sound discretion of the trial court, which must consider a number of factors to
determine whether the need to seal the document overcomes the public's right of
access. See Fair Finance v. Beacon Journal, 692 F.3d at 431.
Justice FitzGerald's reasoning demonstrates that, even if the affidavit could
somehow be viewed as a public record, his decision to keep it sealed constituted a
provident exercise of his discretion. After all, the cases against the indicted
defendants had not yet proceeded to the point where the document had been, or was
required to be, disclosed to them. As with Facebook's First Amendment claim
regarding the no-notification provision, concerns for maintaining secrecy regarding
the investigation strongly militated against public access to the affidavit at that point.
The trial court's justified concern for the privacy interest of individuals who
had not been charged with crimes exposes the irony in Facebook's demand.
Facebook has insisted that it must challenge the government's conduct on behalf of
its users in order to protect their privacy and the privacy of all other users from what
it deems the District Attorney's overbroad intrusions into their profile pages. But had
the trial court acted as Facebook now demands, the affidavit would have been
available to any member of the public who requested it -- a fact that would have
compromised greatly the privacy rights of the account holders listed in it.
Lastly, Facebook advanced no compelling reason why its desire to view the
affidavit at that time should trump these other considerations. Facebook's persistent
efforts to convince the lower courts that it needed to see the affidavit were related to
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its desire to litigate the propriety of the warrants. However, as already demonstrated,
Facebook had no right to litigate the legality of the warrants and, therefore, was not
entitled to access the contents of the affidavit for that purpose. Facebook did indicate
that it would gladly provide the affidavit to the Appellate Division to review in
connection with Facebook's appeals. But, as Justice FitzGerald astutely noted, the
Appellate Division could certainly have asked the People to provide the document, if
that court felt it needed to review the affidavit in order to resolve Facebook's appeal.
Nonetheless, Facebook relies on several federal cases in which courts have
found that search warrant affidavits were, indeed, judicial documents to which the
public had a right of access (FB at 50-51). Of course, as even Facebook recognizes, in
United States v. Custer Battlefield Museum, 658 F.3d 1188 (9th Cir. 2011), although the
Ninth Circuit was willing to find a common law right of access to a search warrant
affidavit, it upheld such a ruling because the investigation had been terminated and
the government had determined that it would not bring a prosecution against the
target. Id. at 1192. In contrast, here the case was still ongoing when Facebook made
its request.
In any event, there is a critical difference between Federal Rule of Criminal
Procedure 41 -- which governs search warrants issued by federal judges -- and New
York Criminal Procedure Law Article 690 -- the state warrant statute -- which proves
fatal to Facebook's claim. As the Ninth Circuit noted in Custer Battlefield, the relevant
federal rule requires the "judicial officer to file the warrant and all papers, with the
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clerk of the district court." Federal courts have construed that language to include the
warrant affidavits.17 See, e.g., id. at 1193, quoting In re the Baltimore Sun Company v. Goetz,
886 F.2d at 63-64; see also In re Sealing and Non-Disclosure, 562 F.Supp.2d at 876. In
other words, a federal rule essentially turns those affidavits into court documents, to
which the federal common-law right of access applies. However, CPL Article 690
does not require a judicial officer to file the affidavit with the clerk of the court.
Because there is no state law requiring that search warrant affidavits be treated as
public, judicial documents, those federal cases finding a right of access to search
warrant affidavits have no bearing here.
Finally, Facebook asserts that there "is no need for continued secrecy now that
the Government's investigation has ended" (FB at 52). But, the issues before this
Court concern the propriety of the trial court's ruling at the time that ruling was made.
If Facebook believes that circumstances have changed in a manner that advances its
cause, then Facebook may bring a new proceeding before the trial court, by way of a
FOIL request. See Public Officers Law, Article 6. At that point, the People can either
disclose the document or make a record regarding applicable exceptions. Facebook is
certainly not entitled to seek disclosure as a non-party trying to force its way into a
criminal case.
17 The federal rules have been amended and that subsection, which at the time was
41(g), is now 41(i).
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In sum, Facebook's unprese.rved claim that it was entitled to view the affidavit
under either the First Amendment or the common-law right of access to judicial
documents is meritless.
CONCLUSION
Facebook's appeals should be dismissed.
ALANGADLIN
SUSAN AXELROD
Assistant District Attorneys
Of Counsel
May 12,2016
Respectfully submitted,
CYRUS R. VANCE,JR.
District Attorney
New York County
BY:~ r2r~r~
/~USAN AXELROD
Assistant District Attorney
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