The Matter of 381 Search Warrants Directed to Facebook Inc. v. New York County District Attorney's OfficeThe Matter of 381 Search Warrants Directed to Facebook Inc. v. New York County District Attorney's Office
Lead Opinion
In this matter, we are asked to determine the appealability of two Supreme Court orders. The first order denied Facebook, Inc.’s motion to quash certain warrants, issued pursuant to the Federal Stored Communications Act, that sought the account information and communications of various Facebook subscribers in connection with a criminal investigation. The second order denied Facebook’s motion to compel disclosure of the affidavit supporting the warrant application.
This case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizure, and the parameters of a federal statute establishing methods by which the government may obtain certain types of information. Nevertheless, while it may be tempting for this Court to address those issues, we must — in this case as in every other case — first ascertain whether we possess the necessary jurisdiction to do so under our own constitution and statutes. This presents equally important issues regarding the separation of powers among our three branches of government. With these principles in mind, because the orders resolving Facebook’s motions relate to warrants issued in a criminal proceeding, and the Criminal Procedure Law does not authorize an appeal from either order, we are constrained by law to affirm the Appellate Division order dismissing Facebook’s appeals to that Court.
In July 2013, Supreme Court issued 381 warrants directed at Facebook upon a warrant application by the New York County District Attorney’s Office that was supported by an investigator’s affidavit. The warrants, based upon a finding of probable cause, sought subscriber information and content from numerous user accounts in connection with a pending criminal investigation into allegations of widespread Social Security Disability fraud involving the crimes of larceny and filing a false instrument. The warrants directed Facebook “to retrieve, enter, examine, copy, analyze, and . . . search [each] TARGET FACEBOOK ACCOUNT for the . . . [specified] evidence and property, and ... to bring it before the [c]ourt without unnecessary delay.” The specified evidence included, among other things, each target account holder’s profile information, contact and financial account information, groups, photos and videos posted, historical login information, and “[a]ny public or private messages.” The warrants prohibited Facebook from notifying its subscribers or otherwise disclosing the existence or execution of the warrants, in order to prevent interference with the investigation.
Facebook moved to quash the warrants, arguing that they were constitutionally defective because they were overbroad and lacked particularity; Facebook also challenged the nondisclosure component of the warrants. Supreme Court denied the motion, holding that Facebook lacked standing to assert any expectation of privacy or Fourth Amendment challenge on behalf of the individual account holders and that, in any event, the warrants were supported by probable cause and were not unconstitutionally overbroad. Supreme Court also rejected Facebook’s challenge to the nondisclosure clauses of the warrants, concluding that disclosure of the warrants to the subscribers would risk jeopardizing the ongoing criminal investigation. The court directed Facebook to immediately comply with the warrants.
Facebook appealed Supreme Court’s order, and sought a stay thereof pending resolution of its appeal. After the Appellate Division denied Facebook’s application for a stay, Facebook complied with the warrants and furnished the requested digital data.
While Facebook’s appeal was still pending, some of the targeted Facebook users were indicted for crimes stemming
In a single order, the Appellate Division dismissed both of Facebook’s appeals on the ground that they were taken from nonappealable orders (
This Court granted Facebook leave to appeal (
II.
The warrants in question were issued, in accordance with the procedures of CPL article 690, pursuant to title II of the Electronic Communications Privacy Act of 1986, officially entitled the “Stored Wire and Electronic Communications and Transactional Records Access” and commonly referred to as the Stored Communications Act or the SCA (see Electronic Communications Privacy Act of 1986, Pub L 99-508, tit II, 100 US Stat 1860, codified as amended at 18 USC § 2701 et seq.). When enacting the SCA, Congress observed that the “law must advance with the technology to ensure the continued vitality of
To that end, the SCA prohibits the providers of electronic communication and remote computing services
The appropriate method to be used depends on the type of provider, the age of the communication sought, and whether the government seeks disclosure of content-based information {see id. § 2703 [a]-[d]). For example, a governmental entity may obtain disclosure from an electronic communication service of the content of a communication stored for 180 days or less only with a warrant issued by a magistrate upon probable cause and in accordance with the applicable federal or state warrant procedures {see id. § 2703 [a]). Older communications held by an electronic communication service, or communications held
The SCA provides that no cause of action will lie against a provider that discloses information “in accordance with the terms of a court order, warrant, [or] subpoena” issued under the statute {id. § 2703 [e]; see id. § 2707 [e] [1]). Nevertheless, subsection (d) of section 2703 allows “[a] court issuing an order pursuant to this section, on a motion made promptly by the service provider, [to] 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.” The primary question before us in this appeal is whether — assuming, without deciding, the propriety of a motion to quash an SCA warrant (as opposed to a subsection [d] court order) in the first instance — an order resolving a motion to quash SCA warrants is appealable.
III.
That the SCA draws a distinction between warrants and subpoenas, and the content that may be obtained therewith, is of critical significance with respect to a determination of appellate jurisdiction over the appeal from the denial of Facebook’s motion to quash. It is a fundamental precept of the jurisdiction of our appellate courts that “ finjo appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute’ ” (People v Lovett,
Consequently, we have held for decades that “no appeal lies from [an] order denying . . . [an] application to vacate a search warrant ... as this is an order in a criminal [case], [and] an appeal from [such an order] is not provided for” by statute (Matter of Police Benevolent Assn. of N.Y. State Police v Gagliardi,
In the instant matter, Facebook concedes that an order addressing a motion to quash a warrant is not appealable, but Facebook contends — and the dissent agrees — that, despite being denominated as “warrants,” SCA warrants are more analogous to subpoenas than to traditional search warrants involving tangible property because they compel third parties to disclose digital data. Thus, Facebook and the dissent urge us to treat Supreme Court’s first order denying its motion to quash the warrants as an appealable order denying a motion to quash subpoenas. This argument is unpersuasive.
It is true that the method of compliance with an SCA warrant has some characteristics that resemble a response to a subpoena. Most prominently, an SCA warrant compels a third party — here, Facebook — to compile and turn over digital data
Initially, the SCA plainly distinguishes betweеn subpoenas and warrants, and there is no indication that Congress intended for SCA warrants to be treated as subpoenas. Indeed, to so hold would be to ignore the plain language of the SCA in contravention of the rules of statutory interpretation (see People v Jones,
“[w]arrants and subpoenas are, and have long been, distinct legal instruments. Section 2703 of the SCA recognizes this distinction and, unsurprisingly, uses the ‘warrant’ requirement to signal (and to provide) a greater level of protection to priority stored communications, and ‘subpoenas’ to signal (and provide) a lesser level. Section 2703 does not use the terms interchangeably. Nor does it use the word ‘hybrid’ to describe an SCA warrant. . . . We see no reasonable basis in the statute from which to infer that Congress used ‘warrant’ to mean ‘subpoena’ ” (Matter of Warrant to Search a Certain E-Mail Account*245 Controlled & Maintained by Microsoft Corp.,829 F3d 197 , 214 [2d Cir 2016] [citations omitted], reh denied855 F3d 53 [2d Cir, Jan. 24, 2017]).
Notably, the Second Circuit is not alone in refusing to equate SCA warrants with subpoenas. The Eighth Circuit has also observed that, “[w]hile warrants for electronic data are often served like subpoenas (via fax), Congress called them warrants and . . . Congress intended them to be treated as warrants” CBach,
Significantly, under our own jurisprudence, we must “look[ ] to the true nature of [a] proceeding and to the relief sought in order” to determine whether the proceeding is a special civil proceeding giving rise to an appealable order or, instead, a criminal proceeding for which an appeal must be statutorily authorized (Matter of Abrams,
Unlike a subpoena, which finds broad use in civil matters, an SCA warrant is not “civil by nature” (id. at 192). As with a traditional search warrant, an SCA warrant may be issued only to a governmental entity, upon a showing of probable cause, and pursuant to statutory warrant procedures (see 18 USC § 2703 [a], [b] [1] [A]; [c] [1] [A]). In addition, while a subpoena does not commence a criminal proceeding because it is not issued by a court, the issuance of a warrant by the court does just that (see CPL 1.20 [18]; Cayuga Indian Nation of N.Y. v Gould,
Moreover, a challenge to a subpoena, even where related to a criminal investigation, is “limited in scope, challenging only the validity of the subpoena or the jurisdiction of the issuing authority,” and “substantial delay in the proceedings is unlikely” to result from permitting appeals from orders deciding such motions (Matter of Santangello v People,
IV.
The dissent posits that Facebook must have a right to appeal in state courts, despite the absence of any statutory predicate under state law, on the ground that the SCA provides Facebook with a right to bring a motion to quash in the first instance and, thus, “normal federal rights of appeal apply” (dissenting op at 260). While we decline to opine on the propriety of a motion to quash a warrant under 18 USC § 2703 (d), suffice it to say that the dissent’s argument, which is essentiаlly a preemption argument,
The SCA — which recognizes a variety of causes of action in connection with the release of electronic data that do not apply here (see 18 USC § 2707) — does not provide a third party with an independent cause of action under section 2703 (d) to challenge the issuance of either a warrant, subpoena, or court order. Rather, that section merely authorizes the provider to make a “motion” to a court that has already issued an “order” (id. § 2703 [d]); in other words, section 2703 (d) provides for a motion in an already-existing proceeding, not the commencement of a new and separate proceeding.
Nor does the SCA provide a third party who makes a motion to quash with an express right to appeal the determination of such a motion. The federal courts of appeals have jurisdiction over “final decisions” of the federal district courts (28 USC § 1291). A final decision is one that, unlike the orders at issue here, “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment’ ” (Coopers & Lybrand v Livesay,
Notably, the exception permitting appeals of administrative subpoenas has not been extended to warrants, as “[a]n order denying the suppression of evidence or denying a motion to quash a warrant in a criminal trial is interlocutory and generally not appealable by a private party until a final judgment in the case has been rendered” (Matter of 949 Erie St., Racine, Wisconsin, 824 F2d 538, 540 [7th Cir 1987]; see Matter of Consolidated Rail Corp., 631 F2d 1122, 1125 [3d Cir 1980]; see also DiBella v United States,
Contrary to the dissent’s assertion, neither the Second Circuit (nor any other court directly addressing appeal-
Nor are we persuaded that federal law would otherwise preempt our dismissal of these appeals, which rests “squarely on . . . neutral state [r]ule[s] . . . [for] administ[ering] . . . state court[ ]” jurisdiction (Johnson v Fankell,
V.
To the extent Facebook and the dissent argue that SCA warrants will escape judicial review if orders relating to motions to quash such warrants are deemed not appealable, that argument is also flawed. By its very nature, a warrant is subject to judicial review because it cannot be issued unless a neutral magistrate makes a finding of probable cause and particularity (see US Const 4th Amend; NY Const, art I, § 12). In addition, there are avenues of relief available to those subjects of SCA warrants who are ultimately prosecuted and who may, therefore, challenge the validity of the warrant on statutory or constitutional grounds, as well as potential civil remedies for those who are not formally accused (see generally 18 USC § 2707; 42 USC § 1983; Bivens v Six Unknown Named Agents of Fed. Bur. of Narcotics, 456 F2d 1339, 1347 [2d Cir 1972]).
While Facebook’s concerns, as a third party, about overbroad SCA warrants may not be baseless, we are mindful that there are counterbalancing concerns that militate against authorizing appellate review of warrants issued in connection with criminal prosecutions outside of the review that may be sought by a criminal defendant following conviction. For example, we have cautioned that we must abide by the statutory authorizations for appeals in criminal cases in order to “limit appellate proliferation in criminal matters, . . . [because] [l]itigation may be compounded unduly by protracted and multifarious appeals and collateral proceedings frustrating the speedy determination of disputes” (Matter of State of New York v King,
“That the Legislature has not authorized an appeal from an order in a criminal proceeding is conclusive; and ‘any arguments for a change in the practice, however persuasive, must be addressed to the legislature’ ” (Matter of Santangello,
Inasmuch as there is no statutory predicate for Facebook’s appeal from the order denying its motion to quash the SCA warrants that were issued in a criminal proceeding (see CPL art 450; CPL 470.60), nor any other legal basis for such appeal, we must affirm the Appellate Division’s dismissal of Facebook’s appeal insofar as taken from that order. Supreme Court’s order denying Facebook’s motion to compel disclosure of the affidavit is, likewise, not appealable, although Facebook may explore other procedural avenues to raise its claim (see Matter of Newsday,
In light of our holding, we have no occasion to consider, and therefore do not pass on, the merits of the parties’ arguments regarding Facebook’s standing to assert Fourth Amendment claims on behalf of its users, whether an individual has a reasonable expectation of privacy in his or her electronic communications, the constitutionality of the warrants at issue, or the propriety of the District Attorney’s refusal to release the supporting affidavit. Nor do we pass on the question of whether 18 USC § 2703 (d) authorizes a motion to quash an SCA warrant in the first instance. Due to the absence of jurisdiction for Facebook’s appeal to either this Court or the Appellate Division, these issues remain open.
Accordingly, the order of the Appellate Division should be affirmed, without costs.
Notes
. An “electronic communication service” is “any service which provides to users thereof the ability to send or receive wire or electronic communications” (18 USC § 2510 [15]; see 18 USC § 2711 [1]), whereas a “remote computing service” provides “to the public . . . computer storage or processing services by means of an electronic communications system” (id. § 2711 [2]).
. Notice to the subscriber may be delayed in accordance with 18 USC § 2705.
. The appealability of an order resolving a nonparty’s motion to quash a subpoena issued after the commencement of a criminal action and the propriety of the Appellate Division cases relied on by the dissent (see e.g. People v Marin,
. The dissent incorrectly asserts that our holdings in these cases undermine our reasoning in the instant matter. In Cayuga Indian Nation of N.Y.v Gould, we held that a declaratory judgment action may be entertained, in the court’s discretion and prior to the commencement of a criminal action, where the constitutionality or legality of a statute or regulation is in question and no questions of fact are involved (
. While Facebook may have alleged that the materials sought by the warrants were unusually voluminous, Facebook made no argument below that the warrants imposed any type of administrative burden on it with respect to compliance. At the trial level, Facebook sought only to challenge the warrant on constitutional grounds and alleged voluminosity only in the context of its overbreadth argument.
. The dissent’s point that a motion to quash an SCA warrant may not always seek to raise an argument attacking the warrant on constitutional grounds is of no moment. That such relief may be sought is sufficient to aid us in determining that the matter at hand is a criminal one. Furthermore, the dissent’s assertion that Facebook’s standing to raise Fourth Amendment claims “has nothing to do with the criminal law” ignores that other courts have found the issue of third-party standing in the Fourth Amendment context more complex (see e.g. Microsoft Corp. v United States Dept. of Justice,
. Notably, the parties to the appeal before us do not raise a preemption argument. This Court generally refrains from addressing issues not argued by the parties, as we have recognized that, to do otherwise, would be unfair to the litigants, “who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” (Misicki v Caradonna,
. To be sure, federal courts have also recognized an exception to the principle requiring that a party be found in contempt to obtain a final judgment “in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims” (United States v Ryan,
Concurrence Opinion
(concurring). I concur with the majority that the order denying Facebook’s motion to quash the warrant is not appealable, but on the narrower basis that Facebook did not assert the grounds provided for under 18 USC § 2703 (d), and, thus, pursuant to section 2703 (a), the order is subject to our state rules and unreviewable. However, I fully agree with and adopt my dissenting colleague’s comprehensive and well-
Section 2703 (d) gives service providers standing to move to quash or modify warrants on grounds that “the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.” The plain language of this subsection expressly applies to service providers like Facebook, and to any order issued pursuant to section 2703, including the warrants served on Facebook under the authority of section 2703 (a).
The SCA was designed to “protect legitimate law enforcement needs while minimizing intrusions on the privacy of system users as well as the business needs of electronic communications system providers” (132 Cong Rec S7987-04 [June 19, 1986]). Section 2703 (d) therefore encompasses demands to turn over information that impacts thе provider’s business, reputational, and property interests that may be impacted adversely by an order issued under subsections (a), (b), or (c) of section 2703. Being forced to share material from its users’ accounts, unavoidably including material from individuals irrelevant to the State’s investigation, may indeed tarnish a service provider’s brand and alienate its users (see dissenting op at 263-264; see also In re Apple, Inc., 149 F Supp 3d 341, 368-373 [ED NY 2016]). Therefore, the economic impact on a service provider is sufficient grounds to assert relief in the form of a motion to quash or modify under section 2703 (d).
It is manifest that to adequately protect the service provider’s interests, the denial of a motion to quash or modify is appeal-able as it is a final determination on the propriety of the government’s intrusion on those interests. The right to appellate review is part of the statutory framework that protects a service provider from government overreach. As the dissent explains, at the heart of our Fourth Amendment protections is the protection of privacy rights against the power of government (see dissenting op at 256-260, 280-282). The type of intrusion at issue here is even broader in many respects than those so familiar to the founders when they ratified the Fourth Amendment.
Moreover, the majority ignores the balance of interests reflected in the SCA when it concludes that a service provider who challenges an SCA warrant should be treated the same as a challenger to a subpoena under any other statute. In the latter case, the party has two options: comply or refuse to comply and, if cited, litigate the propriеty of the subpoena in a contempt proceeding. The SCA, however, does not impose on service providers this binary, which fails to account for the realities of a technological world of open access and constantly shifting boundaries of personal privacy. The SCA balances the interests of government and the service provider so as to avoid the disclosure to law enforcement of highly sensitive and personal information, made easily accessible with a keystroke, when the request is unusually voluminous or would cause an undue burden on the provider (see dissenting op at 261, quoting 132 Cong Rec S7987-04 [June 19, 1986]).
The majority’s reliance on United States v Ryan (
Although I agree with the dissent that Faceboоk could move to quash on the grounds set forth in section 2703 (d) and that the SCA permits an appeal from an adverse determination of such motion, because Facebook did not assert in the first instance that the information or records requested were unusually voluminous, that compliance would cause an undue burden, or that its business, reputational, or property interests were endangered by the warrant, I agree with the majority that the Appellate Division should be affirmed. Facebook asserted the rights of its users grounding its challenge on claims that the warrants are constitutionally infirm because “(1) the searches they authorize are overbroad, and (2) the warrants lack particularity.” The SCA does not contemplate a service provider’s motion to quash to protect its users’ rights. Those rights are protected by the Fourth Amendment, CPL articles 690 and 710, and 42 USC § 1983 (see majority op at 251). Therefore, Facebook did not assert a basis for relief within the purview of section 2703 (d).
. The SCA protects the rights of providers, not only by explicitly giving them the right to move to quash or modify if the material sought by the warrant is unusually voluminous or would present an undue burden, but also by allowing them to be reimbursed for the costs associated with assembling or providing the material under 18 USC § 2706.
. Contrary to the majority’s claim, while this is a narrow exception, Ryan does not limit it merely to cases “where the party against whom disclosure is sought has an insufficient stake in the matter to risk a finding of contempt” (majority op at 249 n 8). While the Supreme Court in Perlman v United States (
. Since the matter is expressly addressed by section 2703 (d), and Face-book relies on this subsection to support review on the merits, I have no reason to cоnsider the dissent’s analysis of standing under common law and federal law, and express no opinion on these alternative legal bases for appellate review.
. Facebook has not properly asserted claims under our State Constitution so I have no occasion to opine as to whether under our broad interpretation of New York’s constitutional guarantees a service provider may appeal an order denying relief from an SCA warrant on the basis of its users’ interests (see e.g. Cooper v Morin,
Dissenting Opinion
(dissenting). The Fourth Amendment to the US Constitution, urged on the nation by the New York ratifying convention in 1788 (William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791 695 [1st ed 2009]), secures us against unreasonable searches and seizures by our government. It reflects the American consensus that the general warrants and writs of assistance popular among British officials in colonial government — orders that licensed their possessors to scour homes and businesses for anything of potential interest to the Crown, and that were a significant provocation to the revolutionary sentiment then taking hold in New England — had no place in a nascent republic that so deeply abhorred arbitrary power.
The amendment’s effect is “to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority” (Weeks v United States,
Although the framers of the US Constitution knew only the technologies of the 1780s, the framers of the New York Constit
In 1938 — after an “epochal debate” among the delegates to that year’s constitutional convention that aroused the interest of newspaper editorial boards, the letter-writing public, the Governor, and a slew of labor organizations and law enforcement officers (1 Revised Record of the Constitutional Convention of the State of New York at 553, 555 [1938]) — the People approved what became article I, § 12. That section did not merely incorporate verbatim the protections of the Fourth Amendment, but expressly extended those protections to telecommunications. The delegates who drafted section 12, whose discussions thereof stretched over more than three weeks of the convention and nearly five hundred pages of the revised record of its proceedings, agreed that technological advances (whether the telegraph using radio waves, the telephone using copper wires or, by extension, the Facebook message using fiber-optic cable or a different frequency of the radio spectrum) are entitled to the same protections as their more ancient but analogous precursors (1 Revised Record at 340, 530).
“The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.” (277 US at 475-476 .)
The New York Constitution commands us to guard vigilantly against that evil. We have done so on many occasions by interpreting our own Constitution to provide greater protections than the Fourth Amendment when circumstances warrant (People v Weaver,
Here, we are asked to decide whether a federal statute, the US Constitution, the New York Constitution, and the law of New York offer Facebook any meaningful recourse against a warrant authorizing the seizure of private information en masse. The facts are these: On the basis of a single 93-page affidavit (not subsequently shown to Facebook, or to its users
Facebook, which receives tens of thousands of requests from U.S. law enforcement officials each year and claims that it willingly complies with the vast majority of them (Facebook Government Requests Report, https://govtrequests.facebook. com/country/United%20States/2016-Hl/ [accessed Mar. 3, 2017]), repeatedly attempted to negotiate a narrower inquiry with the District Attorney’s office. Rebuffed, Facebook moved the issuing court to quash the warrants. That court denied the motion, holding that Facebook lacked standing to quash the warrants and that the warrants were, in any case, supported by probable cause. The court ordered Facebook to comply with the warrants immediately. Facebook appealed that order and sought a stay pending appeal. After the Appellate Division denied Facebook’s application for a stay, Facebook complied with the warrants. The Appellate Division dismissed Face-book’s appeals on the ground that they were taken from non-appealable orders, but nonetheless appeared to agree with the summary denial of Facebook’s motion for lack of standing. We
Because the denial of the motion to quash is appealable, and because Facebook clearly has standing to move to quash, I respectfully dissent and would remand the case to the Appellate Division to resolve the motion to quash on the merits.
I. Appeal Pursuant to the Stored Communications Act
Despite the significant search and seizure issues it presents, the most straightforward way to resolve this case turns not on the state or federal constitutions, but on a federal statute, squarely invoked by Facebook, that simultaneously authorizes the government’s warrants and confers on service providers— such as Facebook — a right to move to quash those warrants. That statute confers both standing and a freestanding cause of action as to which normal federal rights of appeal apply.
The majority construes my dissent as “rely[ing] on [the] flawed” conclusion “that an SCA ‘warrant’ is equivalent to an ‘administrative subpoena,’ despite the clear and unmistakable distinction between the two” in the statute. That is not right. First, as explained in part I (a), 18 USC § 2703 (d) concerns all “orders,” so that the difference between a warrant and a subpoena is irrelevant to the statutory cause of action provided for by Congress. Second, even in part I (b) and (c), in which I discuss appealability without regard to the statutorily-created cause of action, I do not conclude that SCA warrants and administrative subpoenas are always the same. Instead, under both federal and New York law, the appealability of warrants and subpoenas is not determined by their formal name, but by
An appeal from the statutorily-granted motion to quash is not an appeal in a criminal proceeding,
Very simply, because Congress granted service providers a statutory right to move to quash, it automatically provided standing and a right to appeal, absent a clear statement to the contrary.
a. The SCA Provides Facebook With the Right to Bring a Separate Action to Move to Quash, Including the Right to Appeal
Both parties to this action agree the bulk warrants served on Facebook were issued pursuant to section 2703 (a) of the SCA. The SCA provides statutorily-based quasi-Fourth Amendment protections to information sent to electronic communications and remote сomputing services. The act, which also sets out procedures through which a governmental entity may compel such a service to disclose that information, was designed to “protect legitimate law enforcement needs while minimizing intrusions on the privacy of system users as well as the business needs of electronic communications system providers” (132 Cong Rec S7987-04 [June 19, 1986] [emphasis added]).
The parties do not contend, and the majority does not hold, that the section 2703 (d) right to move to quash or modify an order is available only to those providers served with court orders issued pursuant to section 2703 (b) or (c), and not to those providers, like Facebook, served with warrants under section 2703 (a). Although the opening sentences of section 2703 (d) contain specific provisions that relate only to court orders issued under subsections (b) and (c), the sentence that grants providers a statutory right to move to quash includes all court orders issued “pursuant to this section,” i.e. pursuant to section 2703 generally — not only orders issued under subsections (b) or (c).
Indeed, to so hold would be to ignore the plain language of the SCA in contravention of the rules of statutory interpretation. Other courts presented with section 2703 (d) motions to quash or modify section 2703 (a) warrants have uniformly held that the statute authorizes a service provider’s motion (see e.g. In re Search of Google Email Accounts, 99 F Supp 3d 992 [D Alaska 2015]; In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 15 F Supp 3d 466 [SD NY 2014]).
Service providers can invoke the protections of section 2703 (d) if they have been compelled to disclose an unusual volume
Because Facebook is a “service provider” as defined in the SCA and has alleged that the bulk warrants were unusually voluminous, and because the difference between conducting a targeted search and seizure instead of an overbroad one could make a material difference to the burden imposed on its business, Facebook’s resort to its federal statutory right to move to quash under section 2703 (d) can neither be dismissed for lack of standing nor denied on the merits, even assuming sufficient probable cause existed to justify issuance of the warrants.
Facebook has a federal right to appeal an adverse decision on its motion to quash. Had the District Attorney gone to federal court with his affidavit, as the SCA allows, the district court’s ruling on Facebook’s motion to quash would have been appealable to the U.S. Court of Appeals for the Second Circuit.
b. Even Apart from the SCA, Federal Law Would Allow Face-book to Appeal the Denial of its Motion to Quash
Even putting aside the statutory authorization granted to a service provider to move to quash an SCA warrant, and the concomitant right to appeal, federal law recognizes a fundamen
Whereas the Ryan rule is designed to discourage (but not bar) appeals that would temporarily halt the litigation or grand jury process, here,
“at least from the district court’s perspective, the court’s enforcement of an agency subpoena arises out of a proceeding that ‘may be deemed self-contained, so far as the judiciary is concerned . . . [T]here is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted were the offending [subpoenaed party] permitted to appeal’ ” (Construction Prods.,73 F3d at 469 , quoting Cobbledick v United States,309 US 323 , 330 [1940]).
The Second Circuit has employed the same reasoning to allow the immediate appeal from an order enforcing an arbitrator’s subpoena (Dynegy Midstream Servs. v Trammochem,
That conclusion, which tracks to a considerable extent our own jurisprudence allowing the appealability of an order resolving a nonparty’s motion to quash a subpoena issued prior to the commencement of a criminal action, is further bolstered by the SCA’s explicit support for Facebook’s right to move to quash
c. State Rules of Procedure Cannot Eliminate a Federal Right
The New York Criminal Procedure Law cannot and should not extinguish a service provider’s federal right to a fully adjudicated motion to quash, even if that motion is pursued — at the choice of the government — in state courts. To hold otherwise is to contravene both the language and the remedial and deterrent purposes of the SCA, which here would deprive Facebook of its only avenue to challenge a potentially significant harm.
Although the SCA incorporates state rules governing the issuance of the bulk warrants (18 USC § 2703 [a]),
Finally, this appeal is the only opportunity to litigate fully the rights Congress granted to Facebook. The grounds underlying at least one portion of Facebook’s motion to quash are specific to Facebook, not its users, and Facebook is before us to defend not only the constitutional rights of its users (where the majority has focused its analysis), but also its own business interests.
Even if those users could realistically seek relief for their own injuries through pretrial suppression hearings or 42 USC § 1983 suits — which the majority believes (majority op at 251), but I dispute (part III [c], infra) — Facebook will not be a party to those actions and the hypothetical resolution of their claims would not address or remedy Facebook’s injuries. The majority does not suggest an alternative means for the
Congress granted sеrvice providers their own full day in court, in a completely collateral proceeding subject to normal federal appealability rules. The denial of Facebook’s motion to quash cannot be defeated by applying state-court rules of ap-pealability governing garden-variety New York warrants to SCA warrants issued under federal statutory authority.
This Court should be wary of once again deciding that even a neutral state rule regarding the administration of the courts is a valid excuse for refusing to fully entertain a federal cause of action. It was only eight years ago that the Supreme Court reversed us and admonished that a state “jurisdictional rule cannot be used as a device to undermine federal law” (Haywood v Drown,
II. Appeal Pursuant to the Common Law
Even if the SCA did not confer a right to appeal (that is, even if New York law governed appealability), Facebook could appeal Supreme Court’s order, which is analogous to an order denying a motion to quash a subpoena in a criminal investigation, under the common law of New York State.
The majority and I agree on the framework used to resolve that issue. As their opinion sets out in more detail, it is a
The majority starts by citing CPL 1.20 (18), which states: “ ‘Criminal proceeding’ means any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a prospective, pending or completed criminal action, either of this state or of any other jurisdiction, or involves a criminal investigation.” That section does not distinguish between subpoenas and warrants, and therefore does not support the majority’s proposition.
The majority next cites Cayuga Indian Nation of N.Y. v Gould (
“Our holding in Kelly’s Rental did not expand the rule precluding the use of declaratory judgment actions to encompass situations like this one where a search warrant application was executed but no party was named as the defendant and no accusatory instrument had been filed against any person*270 or company at the time civil relief was sought. A search warrant often targets a place without identifying a defendant. As such, it is not accurate to say that, in every case where a search warrant application has been filed, a criminal prosecution has been commenced, particularly since a warrant may be requested long before a decision is made to file criminal charges. A party is not categorically precluded from initiating a declaratory judgment action based on nothing more than the execution of a search warrant when the issue to be raised involves a pure question of law — such as a query concerning the scope and interpretation of a statute or a challenge to its constitutional validity— and the facts relevant to that issue are undisputed, as they are here. Because no criminal action had been initiated against any identified party at the time this declaratory judgment action was commenced, the decision whether the action could be entertained fell soundly within the realm of discretion possessed by the lower courts and we discern no abuse of that discretion in the denial of the motion to dismiss.” {Id. at 634-635.)
The majority finally relies on Matter of B. T. Prods. v Barr (
“In most cases, prohibition will not be available to challenge the validity of a search warrant. For one thing, it will lie only if the challenge, as in the present case, goes to jurisdiction rather than simply to the existence of probable cause in a particular situation. Of equal significance is the fact that in the typical case there will exist an adequate alternative remedy. A search warrant is most often used to obtain evidence in the course of a criminal investigation of a particular crime, an investigation which will soon eventuate in a criminal proceeding. In such cases, the validity of the search warrant will*271 of course be subject to challenge by means of a motion to suppress, the denial of which is appealable in the context of an appeal from the resultant conviction. Here, however, there is no prosecution, and there is no indication that there ever will be a prosecution, and thus there is no opportunity for a motion to suppress. To allow the failure to prosecute, a failure which may well be due to the absence of sufficient grounds to prosecute, to serve as a shield for the allegedly illegal seizure and retention of private property by government agents would be to make a mockery of justice. This is indeed a proper case for application of the just and ancient writ of prohibition.” (44 NY2d at 233 .)
Far from supporting the proposition that the issuance of a warrant always commences a criminal proceeding, whereas the issuance of a subpoena does not, the majority’s precedents establish three propositions сontrary to its holding today: (1) the issuance of a warrant does not always bar the warrant’s target from commencing a collateral proceeding to attack it; (2) so long as “no criminal action had been initiated against any identified party,” challenges to the warrant need not be restricted to the forthcoming criminal prosecution; and (3) when the target of the warrant is not the target of the potential prosecution, that person will have no “adequate alternative remedy” other than a collateral challenge to the warrant, which cuts sharply in favor of entertaining the challenge to the warrant.
Because the majority has interpreted our precedents to state an inflexible rule that does not, until now, exist, it should hardly be surprising that a “formidable line of authority” allows the direct appeal of orders granting or denying motions to quash subpoenas, even those issued in criminal investigations if prior to the commencement of a criminal action (Matter of Cunningham v Nadjari,
Those precedents are indistinguishable from Facebook’s situation, unless one woodenly applies “warrant” and “subpoena.” For example, in Matter of Abrams (John Anonymous) (
In determining whether proceedings should be properly characterized as civil or criminal, this Court has eschewed a label-based test and instead consistently adhered to looking “to the true nature of the proceeding and to the relief sought” (Abrams,
The SCA warrants operate more like subpoenas than like traditional search warrants in several significant, and determinative, respects.
The execution of SCA warrants so closely resembles the execution of traditional subpoenas and civil document requests that no other aspects need to be considered.
Abrams itself focused on whether the contested motion could arise in the context of a purely civil suit and on whether the
The contention that an SCA warrant is not “civil by nature” because it commences a criminal proceeding under CPL 1.20 (18) and can be issued only to a governmental entity upon a showing of probable cause misses the point. The question is not whether the warrant itself was issued in a criminal proceeding, but whether the motion to quash gave rise — as so often under Doe and its progeny — to a civil proceeding, with its own index number, collateral to and discrete from the criminal one that birthed it. That is precisely what happened here.
The District Attorney’s argument that the text of the statute refers to section 2703 (a) orders as warrants, and that the Second Circuit has found Congress intended them to be treated as warrants, is also unpersuasive. Although the Second Circuit is not required to adopt Abrams’ anti-textualist approach, our long-standing praсtice requires we abjure simple heuristics and instead determine the true nature of the proceeding. Furthermore, the nature of the SCA bulk warrants was a close question for that court (see Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.,
An unstated common practice behind our precedents supports Facebook’s right to appeal. Although our series of short memoranda affirming or denying leave to appeal have not offered explicit and extensive guidance on how to determine whether an underlying proceeding is more criminal or civil in nature, a line of Appellate Division cases invoked by Facebook suggests the pivotal consideration is whether “the denial of an appeal ... at this juncture would irrevocably preclude [a party] from any opportunity to vindicate its position before an appellate body” (People v Marin,
If it cannot, there will be no opportunity for the Appellate Division or this Court to harmonize the decisions of our trial courts with one another, with our interpretation of the law, or with the requirements of the SCA — forcing the federal due process and New York constitutional issues on the Court.
III. Standing under the SCA and the Common Law
Because Facebook is entitled to appeal Supreme Court’s denial of its motion to quash under the SCA and New York common law, the issues of its standing to challenge the bulk warrants and of the propriety of the SCA warrants themselves were properly before the Appellate Division. Because the former issue is a question of law adequately briefed by both parties, I conclude that Facebook has standing to assert its own rights under the SCA, its own rights under the common law, and the rights of its users under the traditional test for third-party standing.
a. SCA Standing
Section 2703 (d) grants service providers a right to move to quash or modify warrants (part I, supra). Thus, to determine standing, a plaintiff need only allege that it is a “service provider” as defined by the statute. No one disputes that Face-book is a service provider. Therefore, the statute itself establishes Facebook’s standing to file a motion to quash, in which it can argue the warrants are unusually voluminous and/or unduly burdensome.
b. Common-Law Standing
Even if section 2703 (d) did not exist, or it was interpreted to extend to subpoenas only and not warrants, Facebook laid out a prima facie case that compliance with the court order would injure it. That injury establishes standing.
The most straightforward injury is the administrative cost of gathering the required information. Facebook and the amici supporting its position advance this interpretation, and Face-book’s briefs here and in the Appellate Division state that the company was forced to conduct a burdensome search and seizure of an extensive number of accounts. Facebook has consistently criticized the volume of information demanded by these warrants. For instance, Facebook, which receives and compliеs with tens of thousands of law enforcement requests each year, informed Supreme Court that this set of 381 warrants exceeded by more than tenfold the largest number of warrants the company had ever received in a single investigation. Each warrant also requested a considerable volume of information, from an extensive number of places around the site, and unbounded by time or type of content. Whether that administrative cost is sufficiently great to require some or all of the warrants be quashed or modified is not the relevant question; the existence of even slight injury suffices to create standing.
Because Facebook’s participation in delivering unbounded information concerning 381 of its users — as well as information concerning what amounts to thousands if not tens of thousands of those users’ friends and fellow enthusiasts — could have an adverse impact on Facebook’s own business operations, Face-book has articulated a sufficient injury to itself to establish standing, quite apart from section 2703 (d).
c. Third-Party Standing
In addition to asserting its own rights, Facebook is here entitled to assert the Fourth Amendment rights of its users under the traditional test for third-party standing.
Indeed, the District Attorney barely contests Facebook’s satisfaction of that test.
Instead, the District Attorney has confused the two very different questions of (1) whether and how far the exclusionary rule extends to third parties who were not the subject of an unlawful search and seizure; and (2) when does a litigant, who is in some degree of privity with a third party and better placed to stand in the shoes of that party for the purposes of vindicating that party’s rights, have standing to assert the rights of that third party? The first question is the focus of the District Attorney’s argument concerning Facebook’s standing, but is not relevant here. The exclusiоnary rule is a judge-made doctrine, designed to provide a sufficient deterrent to unlawful searches and seizures. The extent of its sweep is determined by policy judgments about how broadly (or narrowly) the rule must extend to provide a sufficient deterrent while not excessively barring the use of probative evidence. Those concerns are not at play here. In contrast, the traditional test for determining third-party standing asks whether, because an aggrieved party is poorly situated to protect his or her own rights,
Under that test, the federal courts recognize the right of litigants to bring actions on behalf of third parties, provided the litigant: (a) has suffered an injury in fact sufficient to inspire concrete interest in the outcome of the case; (b) has a close relation to those third parties; and (c) is free of some hindrance obstructing the third parties’ ability to protect their own interests (Powers v Ohio,
We have not articulated a version of that test specific to New York State. The Appellate Division, writing without the benefit of Powers in People v Kern (
No one questions that Facebook satisfies two of Powers’ three criteria.
Thus, whether Facebook may assert the rights of its users turns on the degree to which its users would be able to protect their own Fourth Amendment rights. The District Attorney argues, and the majority agrees, that those users can vindicate their rights through pretrial suppression hearings or civil remedies. Neither I, nor — much more importantly — the delegates to the 1938 constitutional convention agree.
Few users will be afforded the opportunity to invoke an exclusionary remedy to the alleged Fourth Amendment violation. We now know that, of the 381 users whose accounts were seized, only 62 were ever charged. Most, perhaps all, of those 62 pleaded guilty and were sentenced to probation, community service, or conditional discharge. Not one of them moved to suppress evidence seized through the SCA warrants. As we have written, “ [t] o allow the failure to prosecute ... to serve аs a shield for the allegedly illegal seizure and retention of private property by government agents would be to make a mockery of justice” (B. T. Prods.,
It is wholly unrealistic to suggest that those high school students and other persons targeted by the dragnet, not because they were suspected of disability fraud but because they knew someone who was, should vindicate their rights by filing civil suits against the government under section 2707 or 42 USC § 1983. The delegates to the 1938 constitutional convention, who debated the practicalities of civil suits at some length, were adamant that this suggestion “may appeal to a jurist cloistered in his study, but let the average citizen try it!” (1 Revised Record at 362.) The delegates recognized that “the excuse of the officer’s zeal in the performance of what he would describe as a public duty” (id.) and the expense of challenging a defendant with the “financial resources of the city back of him” (id. at 459) would make “these remedies in any concrete instance . . . ineffective” (id. at 529) and so impractical as to be “unreal” (id. at 519) or “absurd” (id. at 364).
IV. Conclusion
Under the majority’s decision, this Court is powerless to protect the business interests of a major company; return information seized from either the 381 individuals, many of whom were never suspected of wrongdoing, or the thousands of innocent individuals who communicated or simply happened to share an interest with a user named in the bulk warrants; prevent a patchwork of opposing jurisprudence on an emerging federal and constitutional issue from creeping across the state; and vindicate the rights granted to New Yorkers in article I, § 12. Although seizing social media content to help curtail widespread disabilities fraud may seem to some a good bargain, the delegates of 1938, with their eyes trained on the gathering storm across the Atlantic (or, in the case of many Republican representatives, on the New Dealer in the White House), remind us that
“the time may come not when some district attorney will have trouble in convicting somebody, not when the rights of some crook ought to be forgotten and he ought to be in jail, not when a crook may or may not be convicted, but the time may come in this State when times will become political, and you will be a convict in the eyes of the other fellow if you don’t believe in his political philosophy.
*282 “If there is any excuse for a written constitution, if there ever has been any excuse for a written constitution, it is to write in there the protection for the minority ¿gainst the aggression and the greed and the brute force of the majority.” (1 Revised Record at 465.)
The concern of this case, like the concern of the delegates’ generation, is not with crime waves, but with the protection of the individual against the power of the government.
“[T]he issue,” in the language of 1938,
“is both clear and simple. It is one of honesty, plain, common honesty. Shall we say what we mean, and shall we mean what we say? Shall we prohibit wiretapping in one breath and admit the evidence obtained in violation of the prohibition in the other breath? Do the gentlemen of the opposition subscribe to the principle that we should adopt a constitutional amendment here with all the sacrosanctness that that imports, and then say to the enforcement officials, ‘You may disregard it, you may violate it, you may override it, you may flout it, if you please, and we will not only uphold you, but the State will adopt the fruits of your crime?’ If that is their position, then God help us. I know of no better invitation to political tyranny or official lawlessness. This kind of logic . . . may be properly described in the words of one of our distinguished statesmen as either crack-pot or boloney. That is all it is. If this is their position, then we say to them now that they are creating a despotism clothed in the robes of legal sanction, nothing more, nothing less.” (1 Revised Record at 504-505.)
Constitutional and congressional words of promise were given to our ear, and I would not break them to our hope. I respectfully dissent, and would remand this case to the Appellate Division to resolve the motion to quash or modify the warrants, as well as the pendant matters involving the permissibility of an indefinite gag order and the disclosure of the underlying affidavit. As one of the delegates to the 1938 convention urged his fellow representatives, “let us decide this thing on the merits” (1 Revised Record at 462).
Order affirmed, without costs.
. For a concise history of the Fourth Amendment and its importance, see Boyd v United States (
. Since Mapp v Ohio (
. A letter addressed to the Convention from then-Governor Herbert Lehman suggested that “[w]e must be ever vigilant to apply to new situations, created by modem conditions, principles that we long ago emblazoned in the Bill of Rights of the Constitution of the United States” (1 Revised Record at 340). A delegate made the analogy explicit, arguing that
“[o]riginally we had no telephone or telegraph. All communication was personal or by post. No one has ever permitted or advocated the violation of the privacy of our mails. Eavesdropping on personal communications could be easily detected and prevented, and privacy thereby assured. Telephone and telegraph, radio and wireless, are more advances and refinements of personal and postal communication. Why are they not entitled to the same protection? How can anyone justify a different rule applicable to them?” (Id. at 530.)
. A delegate explained,
*258 “[I]n the country where the party wire is a sort of an institution, it has always been more or less of a diversion to listen in when the bell rings on the neighbors’ lines . . .
“Now, so far as thе telegraph is concerned, we take a document down to the telegraph office and we publish it, and unless it is in code there is not much secrecy with reference to that” (1 Revised Record at 541).
A subsequent speaker agreed that “[t]he telephone has never been popularly considered a private means of communication, not even for social calls. Not alone are there still party lines, but the central office can cut in, and there is the ever-present possibility of crossed wires, as a result of which conversations are frequently overheard” (1 Revised Record at 558).
. Facebook groups can attract millions of members based on shared interests as anodyne as a sports team or as quintessentially sensitive as a political position.
. Although the majority and I disagree on the ultimate disposition of this case, it is important to clarify that we agree certain portions of the Appellate Division’s ruling should not be taken to bind the decisions of other courts in this state. Because the majority opinion affirms the lower court’s ruling only insofar as the First Department dismissed the appeal as taken from a non-appealable order, the propriety of a motion to quash a Stored Communications Act (SCA) warrant in the first instance remains an open question in New York (majority op at 252) — as does whether the Fourth Amendment, to say nothing of New York Constitution, article I, § 12, protects computer records against unreasonable searches and seizures. On the latter question, where the Appellate Division has already misled our trial courts (see People v Thompson,
. Hence, the majority’s observation, citing several of our decisions, that “a fundamental precept of the jurisdiction of our appellate courts that ‘ “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” ’ ” (majority op at 242) has no application here, becausе the “determination” of Facebook’s motion to quash was not “made in a criminal proceeding” (and was authorized by a federal statute). It goes without saying that each of our precedents relied on by the majority concerns a state-law warrant, not a federal SCA warrant that grants a service provider a right to move to quash.
. The SCA’s original sponsor, Senator Patrick Leahy, continued to ascribe these three aims to the act even while this case was being argued below (Statement of Senator Patrick Leahy [D-Vt.], Chairman, Senate Judiciary
. A warrant is a type of order in the federal courts. Although New York law would not determine what Congress meant by “order” in this instance, “[a] search warrant is a court order” in New York (CPL 690.05 [2]).
. Even were the final sentence of section 2703 (d) construed to apply only to court orders for disclosure under subsection (b) or (c), the due pro
. The United States District Court for the Eastern District of New York, wrestling in a recent case with the substantively identical “unreasonable burden” language arising out of the New York Telephone Co. line of cases, identified a variety of unreasonable burdens that led it to deny the government’s motion to compel Apple to unlock a suspect’s iPhone (In re Apple, Inc., 149 F Supp 3d 341, 368-373 [ED NY 2016]; but see In re XXX, Inc.,
. In Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp. (
. The incorporation of New York State law governing the issuance of warrants means that the District Attorney may have needed to seek eavesdropping warrants, which he did not do, before “intercepting or accessing . . . an electronic communication” (CPL 700.05 [1]; see also Penal Law § 250.00 [6]). Prior to obtaining an eavesdropping warrant, the District Attorney would have had to establish “that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ” (CPL 700.15 [4]). Lower court rulings that eavesdropping warrants are required only for messages in transit (see e.g. Gurevich v Gurevich,
. At least two other state courts of last resort have found that state courts must follow federal rules when state appellate review is necessary to protect a substantial federal right (Johnson v Fankell,
. Even apart from the statutory grant of standing, a simple way to understand why Facebook has standing is to remember that the government cannot search or seize Facebook’s business records or property without a warrant. Facebook has business interests that may be unduly burdened by compliance with the warrants. Because the injury to those business interests may turn in part on whether the bulk warrants are constitutional, there may be some overlap between arguments that Facebook could make and arguments its users could make. That overlap, however, does not negate Face-book’s own stake in the matter.
. The majority does suggest that Facebook could attempt to compel disclosure of the affidavit, pointing to Matter of Newsday, Inc. (
. Had Supreme Court found against the District Attorney, his office would have been entitled to benefit from a symmetrical appeal (see e.g. People v Still,
. Abrams does not require a proceeding to be closely analogous to a motion to quash a subpoena to inaugurate a special civil proceeding incident to, but separate from, a criminal one. In fact, Abrams itself extended not only to a motion to quash a subpoena, but also to a motion to disqualify an attorney. The proper analysis, then, should focus on the true nature of the proceedings (here, essentially, a disclosure request served on an innocent third party), and not on whether the SCA bulk warrants operate more like traditional search warrants or subpoenas. Nevertheless, because the bulk warrants do operate more like subpoenas, I leave that issue for another day.
. The delegates to the 1938 Constitutional Convention themselves thought the term “warrants” poorly characterized the type of order that should be required to seize electronic communications. As one of the leading proponents of what became the relevant sentence of article I, § 12 noted, “The proposal of Senator Dunnigan uses the words, ‘ex parte orders.’ I believe such terminology is better, I think it fits more effectively the work of district attorneys; I think a warrant implies some kind of service on a person, and to use the words ‘ex parte orders’ makes it clear that it can be obtained from a court and it can be kept secret” (1 Revised Record at 472-473). Although section 12 as ultimately drafted requires “ex parte orders or warrants” as the seemingly inadvertent result of a broader, and rushed, compromise between the doughty Senator Dunnigan and his chief Republican adversary, even that final language supports the conclusion that the delegates, too, considered the 1938 precursor of the SCA warrant to be a hybrid.
. The majority asserts that “SCA warrants are governed by the same substantive and procedural laws as traditional search warrants,” but cites CPL articles 690 and 700, and People v Tambe (
. The majority’s contention that “SCA warrants are governed by the same substantive and procedural laws as traditional search warrants” (majority op at 246) conflates the manner of their issuance with the manner of their execution and ignores the fact at the heart of this case: SCA warrants differ from their traditional counterparts in significant part because Congress declared their recipients could move to quash or modify the orders.
. (See e.g. Matter of Di Brizzi [Proskauer],
Cases in which an appeal was dismissed from a proceeding arising in a court with limited and exclusively criminal jurisdiction (see e.g. Matter of Ryan [Hogan],
. As to the question of whether Facebook argued that the warrants were too voluminous and too burdensome, Facebook argued in Supreme Court that “this set of warrants exceeds by more than tenfold the largest number of warrants we ever received in a single investigation,” informed this Court that it “was forced to conduct a burdensome search of hundreds of its users’ accounts,” and has asserted an independent business and financial interest in ensuring that its users’ privacy rights are respected.
. The costs associated with this litigation illustrate how seriously Face-book takes this threat to its financial well-being.
. Facebook’s conscription by the District Attorney’s office and the threats to its business state injuries in fact. Its business relationship with its users, with whom it has an agreement as to the terms of service, and by whose defection its business would be threatened, is as substantial a relationship as those accepted by the courts in several landmark third-party standing cases (see e.g. Craig v Boren,
. They also had a good deal to say against the idea that the proponents of the Magna Carta and the Declaration of Independence could possibly have contemplated what we would now recognize as a liability rule for Fourth Amendment violations.
“Do you suppose, for example, that the barons at Runnymede, when they insisted on their rights from King John, were asking for the right to sue King John’s police officer? . . . [D]o you suppose that they had any idea at all, when they asked to have this written into the Magna Charta, that what they were actually asking for was the right to go to King John after he had violated it and say, ‘Now, King John, won’t you remove this officer?’ Why, of course they didn’t. You know they didn’t.
“There is not a man or woman in this room that believes that when the American colonists back in 1776 were putting up the fight for freedom and for liberty, when they drew up their Constitution and they put these things in, that they had any such idea in mind. Do you think the men who fought at Bunker Hill, do you think the men who walked in the snow with bloody feet at Valley Forge, do you think that the men that fought over here at Ticonderoga, were fighting for the right to resist the police officers of King George? Do you think they were fighting for the right to sue a police officer of King George, or do you think they*281 were fighting for the right to resist an unreasonable search and seizure on the part of Ring George’s henchmen? You know they were not. You know that when they wrote that into the Bill of Rights of the Federal Constitution they thought those were living words, not a mere empty skeleton without any meat or flesh or blood upon it.” (1 Revised Record at 460.)