The Matter of 381 Search Warrants Directed to Facebook Inc. v. New York County District Attorney's Office

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 16
In the Matter of 381 Search
Warrants Directed to Facebook,
Inc., &c.
Facebook, Inc.,
Appellant,
v.
New York County District
Attorney's Office,
Respondent.
(And Another Proceeding.)
Thomas H. Dupree, Jr., for appellant.
Cyrus R. Vance, Jr., for respondent.
New York Civil Liberties Union et al.; Foursquare Labs,
Inc. et al.; Brennan Center for Justice at NYU et al.; District
Attorneys Association of the State of New York; Matthew L. Biben
et al.; Amazon.com, Inc. et al., amici curiae.
STEIN, J.:
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
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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.
I.
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
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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
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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 from
the disability fraud investigation. The warrants and the
investigator's supporting affidavit were eventually unsealed by
orders of Supreme Court, and Facebook was then permitted to
notify the targeted individuals of the existence of the warrants.
Despite the unsealing orders, however, the District Attorney's
Office refused to disclose the supporting affidavit to Facebook
or the general public. Facebook, therefore, moved for an order
compelling disclosure of the affidavit. The District Attorney's
Office opposed the motion, arguing that the unsealing orders did
not render the affidavit available to the public, and asserting
that the affidavit had not yet been provided to the targeted
individuals who were being criminally prosecuted. Supreme Court
denied Facebook's motion to compel disclosure of the affidavit,
and Facebook appealed that order, as well.
In a single order, the Appellate Division dismissed
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both of Facebook's appeals on the ground that they were taken
from nonappealable orders (132 AD3d 11 [1st Dept 2015]). As
relevant here, the Appellate Division explained that "[d]irect
appellate review of interlocutory orders issued in a criminal
proceeding is not available absent statutory authority" (id. at
18). Inasmuch as "neither CPL article 690[, governing warrants],
nor CPL article 450, which sets forth when a criminal appeal can
be taken, provides a mechanism for a motion to quash a search
warrant, or for taking an appeal from a denial of such a motion,"
the Appellate Division concluded that the orders denying
Facebook's motions were not appealable (id.). In so holding, the
Appellate Division rejected Facebook's request that the court
treat the warrants as civil subpoenas for appealability purposes
(see id. at 18-20).
This Court granted Facebook leave to appeal (26 NY3d
914 [2015]), and we now affirm.
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, Pub L 99–508, 100 Stat 1848 [1986]
[codified as amended at 18 USC §§ 2701 et seq.]). When enacting
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the SCA, Congress observed that the "law must advance with the
technology to ensure the continued vitality of the [F]ourth
[A]mendment" (S REP 99-541, 99th Cong, 2nd Sess, reprinted in
1986 US Code Cong & Admin News at 3555, 3559). The SCA was,
therefore, meant "to protect privacy interests in personal and
proprietary information" transmitted through then-emerging
computer-based forms of communication, but it was also enacted to
strike a "balance" between privacy expectations and protecting
"the Government's legitimate law enforcement needs" (id. at
3557).
To that end, the SCA prohibits the providers of
electronic communication and remote computing services1 from
disclosing information regarding subscriber accounts, or the
contents of subscriber communications, with certain exceptions
provided elsewhere in the statute (see 18 USC § 2702 [a]).
Section 2703 sets forth exceptions to the prohibition on
disclosure with respect to the obligation of providers to release
information to governmental authorities (see id. § 2703).
Specifically, section 2703 sets forth three primary methods by
which a governmental entity may obtain disclosure: (1) a
"warrant" issued in accordance with state or federal criminal
1
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]).
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procedure by a court of competent jurisdiction (id. § 2703 [a],
[b] [1] [A], [c] [1] [A]); (2) an "administrative subpoena
authorized by a Federal or State statute or a Federal or State
grand jury or trial subpoena" (id. § 2703 [b] [1] [B] [i], [c]
[2]); or (3) a court order granted under section 2703 (d) upon a
showing of "specific and articulable facts" demonstrating
"reasonable grounds" to believe that the information sought is
"relevant and material to an ongoing criminal investigation" (id.
§ 2703 [d]; see id. § 2703 [b] [1] [B] [ii], [c] [1] [B]).
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 for
storage by a remote computing service, may be obtained either
without notice to the subscriber pursuant to a warrant or with
prior notice to the subscriber2 if the government uses a subpoena
or obtains a court order for disclosure under subsection (d) (see
2
Notice to the subscriber may be delayed in accordance
with 18 USC § 2705.
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id. § 2703 [b]). A warrant, subpoena, or court order may be used
to obtain certain non-content-based information, such as a
subscriber's name, address, length of service, telephone records,
or means of payment (see id. § 2703 [c]).
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" (id. § 2703 [d]).
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
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jurisdiction of our appellate courts that "'[n]o appeal lies from
a determination made in a criminal proceeding unless specifically
provided for by statute'" (People v Lovett, 25 NY3d 1088, 1090
[2015], quoting People v Pagan, 19 NY3d 368, 370 [2012]; see NY
Const, art VI, § 3 [b]; People v Bautista, 7 NY3d 838, 838-839
[2006]; People v Hernandez, 98 NY2d 8, 10 [2002]; People v De
Jesus, 54 NY2d 447, 449 [1981]; People v Zerillo, 200 NY 443, 446
[1911]). No provision of the Criminal Procedure Law articles
that govern appeals -- which are among "'the most highly
structured and highly particularized articles of procedure'"
(Hernandez, 98 NY2d at 10, quoting People v Laing, 79 NY2d 166,
171 [1992]) -- authorizes an appeal to either an intermediate
appellate court or to this Court from an order denying a motion
to quash or vacate a search warrant (see CPL art 450; CPL
470.60). Moreover, no civil appeal may be brought from an order
entered in a criminal action or proceeding (see NY Const, art VI,
§ 3 [b]; CPLR 5601; CPL 450.90).
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, 9 NY2d 803, 803-804 [1961] [emphasis added]; see also
Matter of Abe A., 56 NY2d 288, 293 [1982]). By contrast, a
motion to quash a subpoena issued prior to the commencement of a
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criminal action, even if related to a criminal investigation, "is
civil by nature" (Matter of Abrams [John Anonymous], 62 NY2d 183,
192 [1984]; see Matter of Newsday, Inc., 3 NY3d 651, 652 [2004];
People v Santos, 64 NY2d 702, 704 [1984]).3 Thus, an order
resolving a motion to quash such a subpoena is a final and
appealable order in a special proceeding that is "not subject to
the rule restricting direct appellate review of orders in
criminal proceedings" (Matter of Abrams, 62 NY2d at 192; see
Matter of Newsday, 3 NY3d at 651 n).
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
3
The appealability of an order resolving a non-party'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, 86 AD2d 40, 42
[2d Dept 1982]), of which we have never approved (see People v
Santos, 64 NY2d 702, 704 [1984]), are not before us on this
appeal.
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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 under
its control, and the presence of a law enforcement officer is not
required for service or execution of the warrant (see 18 USC §
2703 [g]). A traditional search warrant, by comparison,
authorizes law enforcement to enter, search, and seize property
(see CPL 690.05 [2]). These differences in execution, however,
can be easily explained by the nature of the material sought.
The service provider is more likely to be better equipped to
access and conduct a search of its own digital information than
law enforcement personnel (see generally United States v Bach,
310 F3d 1063, 1067 [8th Cir 2002]), and the data may be stored in
different locations. Thus, the framework of execution for SCA
warrants ensures efficiency and minimizes intrusion into the
provider's business while promoting and protecting legitimate law
enforcement interests in criminal investigation. Despite the
minor similarities between SCA warrants and subpoenas, in this
post-digital world, we are not convinced that SCA warrants --
which are required under the statute to obtain certain content-
based information that cannot be obtained with a subpoena due to
heightened privacy interests in electronic communications (see 18
USC § 2703 [a], [b] [1] [A]; S REP 99-541, 1986 US Code Cong &
Admin News at 3559) -- should nevertheless be treated as
subpoenas.
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Initially, the SCA plainly distinguishes between
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, 26 NY3d 730, 733 [2016]; Matter of
DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). As the
Second Circuit recently explained,
"[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 Controlled
and Maintained by Microsoft Corp., 829 F3d 197, 214 [2d Cir 2016]
[internal citations omitted], rehearing denied ___ F3d ___, 2017
WL 362765 [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" (Bach, 310 F3d at 1067 n 1).
Significantly, under our own jurisprudence, we must
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"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, 62 NY2d at 191). Conducting that
analysis here, we conclude that an SCA warrant -- and the relief
sought in a challenge to such a warrant -- arises in a criminal,
not a civil, proceeding.
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, 14 NY3d 614, 634 [2010]; Matter of B. T. Prods. v Barr, 54
AD2d 315, 319 [4th Dept 1976], affd 44 NY2d 226 [1978]).4 While
4
The dissent incorrectly asserts that our holdings in
these cases undermine our reasoning in the instant matter. In
Cayuga Indian Nation of New York 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
(14 NY3d 614, 634 [2010]). Notably, however, we did not review
that part of the order below dismissing the declaratory judgment
action insofar as it challenged a search warrant (see id. at 632
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the dissent claims that this "misses the point," it is, in fact,
the crux of the matter. A motion to quash a subpoena that was
not issued by the court may commence a separate civil proceeding;
there is no authority or, indeed, logic, upon which we may
conclude that a motion to quash a warrant that actually commenced
a criminal proceeding, gives rise to yet another proceeding --
this time civil in nature -- that can somehow be separated from
the warrant itself. Additionally, because SCA warrants are
governed by the same substantive and procedural laws as
traditional search warrants (see generally CPL art 690; CPL art
700; People v Tambe, 71 NY2d 492, 500 [1988]), there is simply no
basis in law for distinguishing such warrants from their
n 7), and Facebook's challenge to the search warrants here would
not fall within the rule articulated in that case allowing for a
declaratory judgment. Moreover, while the dissent quotes at
length from a passage in Cayuga that the dissent claims directly
contradicts our holding, our discussion of Kelly's Rental v City
of New York (44 NY2d 700 [1978]) in Cayuga merely clarified that
the issuance of a search warrant does not commence a criminal
action or prosecution (which is commenced by the filing of an
accusatory instrument), but it does commence a criminal
proceeding; this principle is entirely consistent with our
holding herein (see Cayuga, 14 NY3d at 634-635). Likewise, our
ultimate holding in Matter of B.T. Prods. v Barr (44 NY2d 226
[1978]) does nothing to undermine our current assertion that a
search warrant commences a criminal proceeding. There, the Court
held that, although "[i]n most cases, prohibition will not be
available to challenge the validity of a search warrant," such
remedy may be available where the challenge "goes to jurisdiction
rather than simply to the existence of probable cause in a
particular situation" (id. at 233). The arguments raised by
Facebook do not implicate the extraordinary and limited remedy of
prohibition, as there is no question that Supreme Court had
jurisdiction to issue the search warrants at issue here.
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traditional counterparts for jurisdictional purposes.
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, 38 NY2d 536, 539
[1976]). By contrast, the issuance of a warrant potentially has
significant Fourth Amendment implications. A challenge to
criminal warrants, such as the one Facebook raised here,5 will
often seek review of a neutral magistrate's original
determination of probable cause upon a sworn affidavit and
compliance with the strictures of the Fourth Amendment. It can
hardly be disputed that such relief is, quintessentially, of a
criminal nature.6 Accordingly, based on a review of the nature
5
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.
6
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 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, C16-0538JLR, 2017 WL 530353, at *15 [WD Wash
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of the proceeding and the relief sought -- not merely on strict
adherence to the term "warrant," as the dissent claims -- we
conclude that the orders below related to criminal search
warrants issued in connection with a criminal investigation and,
therefore, the order denying Facebook's motion to quash is one
made in a criminal proceeding (see Matter of Abrams, 62 NY2d at
191. Thus, the order is not appealable (see Matter of Police
Benevolent Assn. of N.Y. State Police, 9 NY2d at 803-804; see
also Matter of Alphonso C., 38 NY2d 923, 924 [1976]). Indeed, to
hold otherwise would be to impermissibly and judicially create a
right to appeal in a criminal matter that has not been authorized
by our legislature (see NY Const, art VI, § 3 [b]; Hernandez, 98
NY2d at 10).
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 8). 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 essentially a
Feb. 8, 2017]; see also Alderman v United States, 394 US 165[1969]; Rakas v Illinois, 439 US 128 [1978]). Nevertheless, we
take no position on the merits of that issue, as it is not
properly before us.
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preemption argument,7 relies on two flawed premises. First, the
dissent inaccurately characterizes the SCA as authorizing a
"freestanding cause of action" for providers to move to quash SCA
warrants (dissenting op at 8). Second, the dissent concludes
that an SCA "warrant" is equivalent to an "administrative
subpoena," despite the clear and unmistakable distinction between
the two intended by Congress, as reflected in the statutory
language of the SCA.
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
7
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, 12 NY3d 511, 519 [2009]).
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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, 437 US 463, 467 [1978], quoting
Catlin v United States, 324 US 229, 233 [1945]). Generally, due
to this limitation on federal appellate jurisdiction, "one to
whom a subpoena is directed may not appeal the denial of a motion
to quash that subpoena but must either obey its commands or
refuse to do so and contest the validity of the subpoena if he is
subsequently cited for contempt on account of his failure to
obey" (United States v Ryan, 402 US 530, 532 [1971]; see
Cobbledick v United States, 309 US 323, 330 [1940]). As the
dissent notes, federal courts have held that "[a] district court
order enforcing a subpoena issued by a government agency in
connection with an administrative investigation may be appealed
immediately without first performing the ritual of obtaining a
contempt order" (United States v Construction Prods. Research,
Inc., 73 F3d 464, 468 [2d Cir 1996] [emphases added]). However,
this is a narrow exception to the general rule barring appeals
from motions to quash due to a lack of finality, which rule
"applies whether the subpoena is issued in connection with civil
and criminal actions, or grand jury proceedings, and whether the
person (or entity) seeking to prevent enforcement of the subpoena
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is a party to the litigation or a non-party witness" (Matter of
Air Crash at Belle Harbor, New York on November 12, 2001, 490 F3d
99, 104 [2d Cir 2007]; Construction Prods. Research, Inc., 73 F3d
at 469; see 28 USC § 1291; Ryan, 402 US at 532-533).
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, Wis., 824 F2d 538, 540 [7th Cir 1987]; see Matter of
Consol. Rail Corp., 631 F2d 1122, 1125 [3d Cir 1980]; see also Di
Bella v United States, 369 US 121, 129 [1962] ["An order granting
or denying a pre-indictment motion to suppress does not fall
within any class of independent proceedings otherwise recognized
by this Court, and there is every practical reason for denying it
such recognition. To regard such a disjointed ruling . . . as
the termination of an independent proceeding, with full panoply
of appeal and attendant stay, entails serious disruption to the
conduct of a criminal trial"]; Matter of Search of Elec.
Communications in the Account of chakafattah gmail.com at
Internet Serv. Provider Google, Inc., 802 F3d 516, 525 [3d Cir
2015]). This makes sense because the rationale behind the
exception allowing appeals of administrative subpoenas is that an
"administrative proceeding is self-contained and, unlike in the
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case of a grand jury or trial, there is no 'further judicial
inquiry which would be halted were the offending [subpoenaed
party] permitted to appeal'" (Matter of Air Crash at Belle
Harbor, 490 F3d at 105, quoting Construction Prods. Research,
Inc., 73 F 3d at 469). This exception is facially inapplicable
to warrants issued in criminal proceedings.8
Contrary to the dissent's assertion, neither the Second
Circuit (nor any other court directly addressing appealability)
has determined, or even suggested, that an order denying a motion
to quash an SCA warrant would be treated as a final order in an
independent proceeding or as an order resolving a motion to quash
an administrative subpoena for finality and appealability
purposes. Indeed, recognizing the finality limitation on the
appellate jurisdiction of federal courts, the parties in Matter
8
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 "[i]n 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, 402 US 530, 533 [1971]). However, this narrow exception
applies where the party against whom disclosure is sought has an
insufficient stake in the matter to risk a finding of contempt
(see United States v Beltramea, 831 F3d 1022, 1024 [8th Cir
2016]; Matter of Air Crash at Belle Harbor, New York on November
12, 2001, 490 F3d 99, 107 [2d Cir 2007]; Matter of Grand Jury
Proceeding, 528 F2d 983, 984 [5th Cir 1976]; see generally
Perlman v United States, 247 US 7, 13 [1918]). Here, Facebook
asserts an independent business and financial interest in
ensuring that its users' privacy rights are respected. Thus, it
follows that denial of review of the order denying its motion to
quash the SCA warrants does not effectively render review
impossible (see generally Firestone Tire & Rubber Co. v Risjord,
449 US 368, 376 [1981]).
- 20 -
- 21 - No. 16
of Warrant to Search a Certain E-Mail Account Controlled and
Maintained by Microsoft Corp. (829 F3d at 205) stipulated to a
contempt finding so as to secure appellate jurisdiction (see
generally Ryan, 402 US at 532-533). Furthermore, the Second
Circuit's conclusion that the plain language of the SCA evidences
Congress's intent to recognize the legal distinction between
warrants and subpoenas profoundly undermines the dissent's
prediction that orders pertaining to such warrants would, for
appealability purposes, be treated as orders relating to
subpoenas (see Matter of Warrant to Search a Certain E-Mail
Account Controlled and Maintained by Microsoft Corp., 829 F3d at
205).
Nor are we persuaded that federal law would otherwise
preempt our dismissal of these appeals, which rests "squarely on
. . . neutral state rule[s] for administering state court[]"
jurisdiction (Johnson v Fankell, 520 US 911, 912 [1997]). "The
general rule, 'bottomed deeply in belief in the importance of
state control of state judicial procedure, is that federal law
takes the state courts as it finds them,'" and "[s]tates thus
have great latitude to establish the structure and jurisdiction
of their own courts" (Johnson, 520 US at 919, quoting Hart, The
Relations Between State and Federal Law, 54 Colum L Rev 489, 508
1954]). Our jurisdictional limitations do not discriminate
against third-party provider claims under the SCA but, rather,
"reflect the concerns of power over the person and competence
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- 22 - No. 16
over the subject matter that jurisdictional rules are designed to
protect" (Haywood v Drown, 556 US 729, 739 [2009]). Moreover,
our holding does not impose any burden on any right the SCA may
provide to Facebook to move to quash the warrants at issue here.
The SCA provides no express right to appeal, and the United
States Supreme Court "has never held that the States are required
to establish avenues of appellate review" (M.L.B. v S.L.J., 519
US 102, 111 [1996], quoting Rinaldi v Yeager, 384 US 305, 310
[1966]; see Johnson, 520 US at 919; Kohl v Lehlback, 160 US 293,
299 [1895] ["the right of review in an appellate court is purely
a matter of state concern"]).
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
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- 23 - No. 16
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 resolution of disputes" (Matter of State of New York v
King, 36 NY2d 59, 63 [1975]). Indeed, the United States Supreme
Court has recognized this very same concern for limiting appeals
in criminal actions in the interest of expedient justice (see
Ryan, 402 US at 532). Any debates about the balancing of such
concerns is beside the point, because the weighing of these
policy considerations is not ultimately within our province.
"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, 38 NY2d
at 539-540, quoting Cohen and Karger, Powers of the New York
Court of Appeals, § 188, at 707). We "may 'not resort to
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- 24 - No. 16
interpretative contrivances to broaden the scope and application'
of unambiguous statutes to 'create a right to appeal out of thin
air' in order to 'fill the . . . void, without trespassing on the
Legislature's domain and undermining the structure of article 450
of the CPL'" (People v Stevens, 91 NY2d 270, 279 [1998], quoting
Laing, 79 NY2d at 170-171, 172; see Hernandez, 98 NY2d at 10).
Until such time as the legislature may deem it appropriate to
provide statutory authorization for appellate review, we have
every faith in the competence and efficacy of our trial courts to
resolve any motions properly brought by providers under the SCA
in state courts.
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, 3
NY3d at 652).
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
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- 25 - No. 16
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.
- 25 -
Matter of 381 Search Warrants Directed to Facebook, Inc.
(New York County District Attorney's Office)
No. 16
RIVERA, J.(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-reasoned analysis
that the Stored Communications Act permits Facebook to appeal the
denial of a motion to quash or modify the SCA warrants
(dissenting op at §§ I[a], III[a]).
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" (18 USC § 2703 [d]). 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
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- 2 - No. 16
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).
Section 2703 (d) therefore encompasses demands to turn over
information that impacts the 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 12-13; see
also In re Apple, Inc., 149 F Supp 3d 341, 368-73 [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).1
It is manifest that to adequately protect the service
provider's interests, the denial of a motion to quash or modify
is appealable 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
1
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.
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- 3 - No. 16
explains, at the heart of our Fourth Amendment protections is the
protection of privacy rights against the power of government (see
dissenting op at 1-7, 40-42). 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.
Contrary to the majority's view, appealability of an
order denying a motion to quash is not subject to our state
procedural rules governing warrants, because such an order is
authorized under section 2703 (d), not 2703 (a). Unlike
subsection (a), which expressly refers to state procedures, there
is no such language attached to a section 2703 (d) order denying
a motion to quash. Absent language indicating the Congressional
adoption of state procedures that would limit the protections
specifically designed to address the concerns of service
providers, there is no legal authority or reason to impose state
laws and rules governing state criminal matters on the SCA.
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 propriety 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
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- 4 - No. 16
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 10, quoting 132 Cong. Rec.
S7987-04).
The majority's reliance on United States v Ryan (402 US
530 [1971]) and a line of cases concerning the finality of
various orders under 28 USC § 1291 is misplaced as here federal
jurisdiction is not at issue and the order is a final ruling on
Facebook's motion under section 2703 (d) (majority op at 18).
Regardless, the rule cited by the majority is not hard and fast.
The United States Supreme Court has recognized exceptions for a
"limited class of cases where denial of immediate review would
render impossible any review whatsoever of an individual's
claims" (Ryan, 402 US at 533).2 There is as good a reason, if
not a more compelling basis, to recognize an exception to the
2
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 20 n
9). While the Supreme Court in Perlman v United States (247 US
7, 13 [1918]) stated the case was unique on the merits, it also
noted that the government's contention that the party "was
powerless to avert the mischief of the order but must accept its
incidence and seek a remedy at some other time and in some other
way," was "somewhat strange." Further, Perlman is but "one
example" of the limited class of cases referenced in Ryan (United
States v Beltramea, 831 F3d 1022, 1024 (8th Cir 2016).
- 4 -
- 5 - No. 16
rule requiring that the challenger raise the lawfulness of the
order in a contempt proceeding -- if such a rule applied to
section 2703 (d) -- given the nature of information sought in an
SCA warrant. A service provider may rightly fear being held in
contempt and forego challenging the warrant as the stigma
associated with a contempt finding jeopardizes the service
provider's stability and business position. These concerns
present a calculus for the provider, and combined with the
inherent coerciveness of the choice that risks a finding of
contempt, weigh in favor of disclosure. While any challenger
faces similar concerns, not every challenger has access to the
sheer volume of intimate interpersonal information held by
Facebook and other service providers. There is simply no basis
to hold fast to a paradigm that encourages disclosure without
addressing the unique circumstances presented when government
demands the cache of information stored by service providers.3
Although I agree with the dissent that Facebook 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
3
Since the matter is expressly addressed by section
2703 (d), and Facebook relies on this subsection to support
review on the merits, I have no reason to consider the dissent's
analysis of standing under common law and federal law, and
express no opinion on these alternative legal bases for appellate
review.
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- 6 - No. 16
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 690, CPL 710, and 42 USC § 1983 (see
majority op at 22-23). Therefore, Facebook did not assert a
basis for relief within the purview of section 2703 (d).
The District Attorney's warrant was issued under
section 2703 (a), which expressly states that SCA warrants are
"issued using State warrant procedures." For the reasons stated
by the majority, an order denying a motion to quash such a
warrant on grounds of the users' rights is not appealable under
this Court's current jurisprudence (majority op at 9-15).4
4
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, 49 NY2d 69, 79 [1979] ["We have not hesitated when we
concluded that the Federal Constitution as interpreted by the
Supreme Court fell short of adequate protection for our citizens
to rely upon the principle that that document defines the minimum
level of individual rights and leaves the States free to provide
greater rights for its citizens through its Constitution,
statutes or rule-making authority."]).
- 6 -
Matter of 381 Search Warrants Directed to Facebook, Inc.
(New York County District Attorney's Office)
No. 16
WILSON, J.(dissenting):
The Fourth Amendment to the U.S. 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.1
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, 232 US 383,
391-92 [1914]).2 Although the Supreme Court initially
1
For a concise history of the Fourth Amendment and its
importance, see Boyd v United States (116 US 616 [1886]).
2
Since Mapp v Ohio (367 US 643 [1961]), the Fourth
Amendment has applied with equal force to state officials.
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- 2 - No. 16
interpreted those limits as applying to searches of material
things only (Olmstead v United States, 277 US 438 [1928]), it
has, since Katz v United States (389 US 347 [1967]), extended the
protections to communications in which one has a reasonable
expectation of privacy.
Although the framers of the U.S. Constitution knew only the
technologies of the 1780s, the framers of the New York
Constitution's provision against unreasonable searches and
seizures worked 150 years later and knew more. Our state
constitution, unlike its federal counterpart, includes explicit
protections against unreasonable searches and seizures of
electronic communications (NY Const., art. I § 12).
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 (Revised Record of the Constitutional Convention of the
State of New York at 553 [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,
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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 (Revised Record at 340,
530).3 They were also clear that New Yorkers retain a reasonable
expectation that materials will remain private from the
government even if they are divulged to their intended
recipients, to third parties incident to the means of
communication (such as a telegraph operator), or to a wide
universe of friends and neighbors sharing a party line (Revised
Record at 541, 558).4
3
A letter addressed to the Convention from then-Governor
Herbert Lehman suggested that "we must be ever vigilant to apply
to new situations, created by modern conditions, principles that
we long ago emblazoned in the Bill of Rights of the Constitution
of the United States" (Revised Record at 340). A delegate made
the analogy explicit, arguing that "originally we had no
telephone or telegraph. All communications were personal or by
post. No one has ever permitted or advocated the violation of
the privacy of our mails. Eavesdropping on personal
communications could easily be detected and prevented, and
privacy thus 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).
4
A delegate explained, "In 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, as far as the 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" (Revised Record at 541). A subsequent speaker agreed that
"the telephone has never been properly 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
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- 4 - No. 16
In fact, several prominent delegates thought searches and
seizures of telecommunications should be subject to a higher
standard of review than searches of physical property precisely
because those searches were sure to compromise the privacy of
other people. Those delegates quoted approvingly from Justice
Brandeis' prescient dissent in Olmstead:
"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, 12 NY3d 433, 445-446 [2009], collecting cases).
Here, we are asked to decide whether a federal statute, the
U.S. Constitution, the New York Constitution, and the law of New
is the ever-present possibility of crossed wires, as a result of
which conversations are frequently overheard" (Revised Record at
558).
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- 5 - No. 16
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 whose files were
seized, or to the Appellate Division, or to this Court), Supreme
Court issued 381 warrants. Those bulk warrants authorized the
seizure of what the District Attorney tepidly describes as
"specified categories of information," but which functionally
amounts to 381 users' entire histories on the platform. At least
several of the users were high school students who are unlikely
to have themselves been suspects in the investigation. The
warrants compelled Facebook to produce not only any and all text,
photos, or videos a user had shared with her limited universe of
friends, but also any private messages exchanged between the user
and another individual (who could have been a spouse, doctor,
religious figure, or attorney), as well as information the user
had chosen to no longer share with anyone, such as a previous e-
mail address, a deleted friend, or a hidden post, and information
the user had never intended to share with anyone, such as her
searches and location. It also compelled Facebook to produce
content shared by users who were not named in the 381 warrants,
and may not even have known anyone named in the 381 warrants, but
had the misfortune of posting on the timelines of those users,
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- 6 - No. 16
uploading photos of those users, or simply belonging to any one
of the groups with which a named user was affiliated.5
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,
govtrequests.facebook.com/country/United%20States/2016-H1/
[accessed March 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
Facebook'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
granted Facebook leave to appeal, and now affirm on the grounds
that the orders are non-appealable.6
5
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.
6
Although the majority and I disagree on the ultimate
disposition of this case, it is important to clarify that we
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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
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 an SCA warrant in the first instance remains an open
question in New York (majority op at __) –- as does whether the
Fourth Amendment, to say nothing of article 1, § 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, 51 Misc 3d 693,
710-14 [Sup Ct, New York County 2016], criticizing but applying
the First Department's assertion that the Fourth Amendment is
inapplicable to digital content), the Appellate Division's
decision should be vacated or regarded as dicta, based on the
majority's holding that the motion to quash was not appealable at
all.
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- 8 - No. 16
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 distinction between
the two in the statute." That is not right. First, as explained
in Section I (a), Section 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 Sections I (b) and I (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 the circumstances under
which they are issued -- most importantly, whether there is a
pending criminal action or merely an investigation.
An appeal from the statutorily-granted motion to quash is not
an appeal in a criminal proceeding,7 but in a separate proceeding
7
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 __) has no application here, because
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.
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- 9 - No. 16
authorized by statute. The grant or denial of the motion to
quash is a final decision, not an interlocutory decision in a
criminal proceeding, and is appealable as of right by either
party. Because they have mistakenly assumed that the federal
statute's incorporation of state-law procedures for issuing
warrants converts the federal statutory action into a traditional
state-law warrant, and then applied the "warrant" label without
regard to the circumstances present, the majority and the
Appellate Division have characterized this appeal as taken from a
non-appealable order.
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 computing 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
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- 10 - No. 16
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 [emphasis added]).8
It accomplishes that balance by providing law enforcement
officers with federal statutory authority to compel a third party
(such as Facebook here) to execute a legitimate search and
seizure, while simultaneously granting service providers a
federal right to move to quash or modify problematic orders (§
2703 [d]).
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
8
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 Committee, On the 27th
Anniversary of the Enactment of the Electronic Communications
Privacy Act, https://www.leahy.senate.gov/press/statement-of-
senator-patrick-leahy-d-vt-chairman-senate-judiciary-
committee_on-the-27th-anniversary-of-the-enactment--of-the-
electronic-communications-privacy-act- [accessed March 10,
2017]). The majority's description of the SCA as balancing
privacy expectations and law enforcement needs (majority op. at
__) obliterates Congress' third, and co-equal, concern.
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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).9 The SCA
plainly distinguishes between sections and subsections, and there
is no indication that Congress intended for "sections" to be
treated as "subsections."
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]).10
9
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).
10
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 process clause of the Fourteenth
Amendment would entitle Facebook to a hearing prior to the entry
of any order depriving the company of a significant property
interest, in this case its employees' time and the public's
goodwill. In United States v New York Tel. Co. (434 US 159[1977]), the Supreme Court examined the government's power to
compel an earlier generation of analogous service providers –-
the telephone companies –- to install pen registers and call
tracing equipment. The Court held that the power to "impose
duties upon third parties is not without limit; unreasonable
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Service providers can invoke the protections of Section 2703
(d) if they have been compelled to disclose an unusual volume of
their users' content or to comply with an order that would
otherwise unduly burden them. As Facebook and amici argue, and
as the Eastern District of New York concluded (In re Apple, Inc.,
149 F Supp 3d 341, 368-73 [ED NY 2016]),11 undue burdens are not
burdens may not be imposed." Although the Court found no
unreasonable burden had been imposed in that case, subsequent
Third and Ninth Circuit decisions have held that the risk of an
erroneous deprivation of property rights requires a hearing on
the issue of burdensomeness before a telephone company can be
compelled to cooperate in electronic surveillance,
notwithstanding any delay to an investigation that would be
caused by a hearing (In re Installation of a Pen Register or
Touch–Tone Decoder and a Terminating Trap, 610 F2d 1148,
1156–1157 [3d Cir 1979]; United States v Mountain States Tel. &
Tel. Co., 616 F2d 1122, 1132–1133 [9th Cir 1980]). Internet
providers are entitled to at least the same degree of due process
protection, which squares with the SCA's provision of a right to
move to quash whether the order is a warrant or a subpoena.
11
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 Tel. 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, 368-73 [ED NY 2016]; but see In re XXX, Inc., 2014
WL 5510865 [SD NY 2014]). The Eastern District's argument that
"the category of unreasonable burdens is not nearly so narrow" as
unreimbursed financial costs arising directly from the work and
instead includes compelling a company to act in ways offensive to
it or in ways that would tarnish its brand is given credence in
this case by the Section 2706 requirement that government
entities seeking information from service providers reimburse
reasonable and necessary costs "directly incurred in searching
for, assembling, reproducing, or otherwise providing such
information." Because that requirement would limit the instances
in which administrative costs were so unduly burdensome as to be
cause to quash or modify a court order, the drafters must have
contemplated a more expansive definition of an "undue burden."
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limited to the direct administrative costs of compliance (for
which the government must reimburse companies under Section
2706). Compelling a company to disclose the private information
of its customers may tarnish its brand or alienate its current or
future users, which could constitute an undue burden when
evaluated against the scope of the request and its potential
benefit to the prosecutor. As the Third Circuit noted in Pen
Register, "[w]ithout a prior hearing, a district court is not
likely to learn [that an] order is too burdensome until after the
company has carried out the order. A prior hearing could have
the further value of allowing the district court to restrict any
excessively burdensome order sufficiently to make it valid" (610
F2d at 1157).
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,
the outcome of Facebook's resort to its federal statutory right
to move to quash under Section 2703 (d) cannot properly be
dismissed for lack of standing or denied on the merits even if
sufficient probable cause existed to justify issuance of the
warrants.
This is precisely the type of burden recognized by In re Apple's
interpretation of the Supreme Court's holding in New York Tel.
Co. (149 F Supp 3d at 368-373).
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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.12
The federal Courts of Appeals generally have jurisdiction over
appeals from all final decisions of the district courts (28 USC §
1291). State rules of procedure applicable to garden-variety
warrants cannot be used as a device to contravene or frustrate
federal law.
b. Even Apart from the SCA, Federal Law Would Allow Facebook 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 fundamental
difference between orders compelling a third party to produce
12
In Matter of Warrant to Search a Certain E–Mail Account
Controlled & Maintained by Microsoft Corp. (829 F3d 197, 205 n 9
[2d Cir 2016]), the Second Circuit, by citation to its prior
decision in United States v Constr. Prod. Research, Inc. (73 F3d
464, 469 [2d Cir 1996]), suggested that a motion to quash an SCA
warrant issued prior to the commencement of a criminal proceeding
is, by analogy to an administrative subpoena, immediately
appealable. The issue of the appealability of an SCA warrant was
not presented in that case, because the parties stipulated to a
stayed contempt order, which the district court entered, and
Microsoft amended its notice of appeal in that regard.
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information as part of an investigation, and orders compelling a
third party to produce information once a criminal proceeding has
commenced. Although subpoenas issued in connection with pending
litigation or the grand jury process are not normally considered
final (United States v Ryan, 402 US 530, 532-33 [1971]), and even
nonparties to those proceedings who wish to obtain immediate
appellate review of a subpoena must first defy the order, be held
in contempt, and then appeal the contempt order (id. at 532),
that rule is inapplicable to district court orders enforcing a
subpoena issued by a government agency in connection with an
investigation.
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 . . . there 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'" (United States v Constr. Prod. Research, Inc., 73 F3d
464, 469 [2d Cir 1996], quotinq 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., LP c Trammochem, 451 F3d 89,
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92-94 [2d Cir 2006] [allowing appeals from independent
proceedings in which "a party comes to federal court for the sole
purpose of asking the court to issue an order" and dismissing
appeals from orders "embedded . . . in the midst of ongoing
litigation in the district court"]). Other circuits have allowed
the appeal of independent proceedings involving administrative
search warrants (Babcock and Wilcox Co. v Marshall Eyeglasses,
610 F2d 1128 [3d Cir 1979]; United States v Stauffer Chemical
Co., 684 F2d 1174 [6th Cir 1982]).
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
an order. The Supreme Court has been reluctant to close the doors
of the Courts of Appeals to those whose appeal from compulsion
rests on statutory provisions (Cobbledick, 309 US at 329).
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
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- 17 - No. 16
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 (§ 2703 [a]),13 the warrants here
are federal warrants issued pursuant to federal statutory law -–
not New York State law –- and no provision of the SCA adopts or
references state-law procedures for the appealability of SCA
warrants. Nor does any portion of the legislative history
suggest that Congress intended to leave appealability of SCA
warrants to the vicissitudes of the appealability rules of the
several states. It is implausible that Congress, which carefully
balanced Section 2703 (a)'s grant of power with Section 2703
(d)'s check on the same, intended to allow prosecutors to forum
shop for the court with the rules of procedure that would best
evade the statutorily-granted quasi-Fourth Amendment protections.
When a service provider moves to quash under Section 2703 (d), it
13
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 750.05 [1]; see also CPL 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 750.15 [4]). Lower court rulings that eavesdropping warrants
are required only for messages in transit (see e.g., Gurevich v
Gurevich, 24 Misc 3d 808, 811-813 [Sup Ct, Kings County 2009])
appear to have read the plain meaning of "accessing" out of the
statute. However, Facebook did not raise that defect here, and I
note it only in passing.
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has initiated a collateral, civil proceeding that gives rise toa
final order subject to federal rules of appeal. Even were that
not so, the SCA would preempt CPL 450 when an SCA warrant is
involved, requiring us to apply the federal rules for
interlocutory appeals in this case involving a federal right.14
But either way, Congress' direction must be honored.
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
14
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, 520 US 911, 914 [1997], collecting McLin v
Trimble, 795 P2d 1035 [Oklahoma 1990] [finessing the matter by
treating what was brought as an appeal as a reviewable original
action, similar to Abrams' "special civil proceeding"] and City
of Lakewood v Brace, 919 P2d 231 [Colorado 1996] [applying
federal rules in state court]). Although Johnson declined to
require a state court of last resort to adhere to federal rules
concerning the appealability of orders denying qualified
immunity, that decision rested on three factors absent here: (1)
the defendants in that case could have their claims fully
reviewed after the entry of final judgment, whereas Facebook can
have no other day in court; (2) the consequence of applying the
state's rules on interlocutory appeals deprived the state –- not
the plaintiff -– of an advantage, so that no competition between
federal and state interests was at issue (the competing interests
in that case involved the state's judgement of how best to
balance two state interests, viz. limiting interlocutory appeals
and providing state officials with an immediate review of an
adverse qualified immunity determination), whereas a federal
statutory interest is manifestly present here; and (3) the
Supreme Court was justifiably more reluctant to impose federal
rules than state courts themselves need to be about importing
those rules voluntarily (Johnson, 520 US at 919-920).
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defend not only the constitutional rights of its users (where the
majority has focused its analysis), but also its own business
interests.15
Even if those users could realistically seek relief for
their own injuries through pretrial suppression hearings or
Section 1983 suits –- which the majority believes (majority op.
at __), but I dispute (infra at III [c]) –- 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 company to
vindicate its right to be free of unusually voluminous or unduly
burdensome requests.16
15
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 Facebook's own stake in the matter.
16
The majority does suggest that Facebook could attempt to
compel disclosure of the affidavit, pointing to Matter of Newsday
(3 NY3d 651 [2004]), a short memorandum in which we suggested an
appellant denied the opportunity to appeal an interlocutory order
in a criminal proceeding could either bring a Freedom of
Information Law request or a civil proceeding pursuant to CPLR
article 78. The majority does not contend an article 78 suit
would also have presented Facebook with a viable mechanism for
challenging the voluminousness or burden imposed by the warrants.
In fact, Newsday tried to do exactly that –- and, ironically, the
Appellate Division converted its article 78 suit into an appeal
(id. at 652).
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Congress granted service 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
appealability 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, 556 US 729, 739 [2009]). Instead, "federal law takes
state courts as it finds them only insofar as those courts employ
rules that do not 'impose unnecessary burdens upon rights of
recovery authorized by federal laws'" (Felder v Casey, 487 US
131, 150 [1988], quoting Brown v Western R. Co. of Alabama, 338
US 294, 298–299 [1949]).
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
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denying a motion to quash a subpoena in a criminal investigation,
under the common law of New York State.17
The majority and I agree on the framework used to resolve
that issue. As their opinion sets out in more detail, it is a
fundamental precept of the jurisdiction of our appellate courts
that "'no appeal lies from a determination made in a criminal
proceeding unless specifically provided for by statute'" (People
v Lovett, 25 NY3d 1088, 1090 [2015], quoting People v Pagan, 19
NY3d 368, 370 [2012]). However, I believe the majority has
misconstrued the authority it cites for the proposition that
"while a subpoena does not commence a criminal proceeding, the
issuance of a warrant does just that."
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.
17
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, 48 AD2d 366 [1975]). The
appellate courts are open equally to the government and the
service provider, and there is no reason to think that
acknowledging motions to quash SCA warrants are appealable may
not benefit the District Attorney in the next case.
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The majority next cites Cayuga Indian Nation of N.Y. v Gould
(14 NY3d 614 [2010]). That case squarely contradicts the
majority's holding here. In Cayuga Indian Nation, several
district attorneys served warrants on the Nation, concerning
possible prosecutions for the unlawful sale of cigarettes. The
next day, the Nation filed a declaratory judgment action
contending that the district attorneys "lacked the power to
obtain a search warrant or seize property and demanded the return
of the confiscated items" (id. at 631). We recognized that
"[t]he general rule is that, once a criminal action has been
initiated, a criminal defendant may not bring a declaratory
judgment action to raise a statutory interpretation or other
issue that can be adjudicated in the criminal prosecution" (id.
at 633). The district attorneys sought to dismiss the
declaratory judgment motion, arguing that "under the Criminal
Procedure Law, the filing of a search warrant application
commences a 'criminal proceeding' (see CPL 1.20 [18] . . . )"
(id. at 634). We rejected the district attorneys' argument, and
allowed the Nation to proceed, holding the following, which
directly contradicts the majority's position here:
"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 or company at
the time civil relief was sought. A search
warrant often targets a place without
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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
(54 AD2d 315, 319 [4th Dept 1976], affd 44 NY2d 226 [1978]).
There, pursuant to a warrant, the Organized Crime Task Force
seized all of B.T. Products' records for a two-year period. B.T.
Products sought a writ of prohibition, contending that the Task
Force lacked the authority to do so. We affirmed B.T. Products'
right to proceed with its writ of prohibition, writing:
"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
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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 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."
(id. 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 contrary 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
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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, 39 NY2d 314, 317 [1976]). Such motions, we have
reasoned, are not made in a criminal proceeding. Rather, they
are final orders in special proceedings on the civil side of a
court vested with civil jurisdiction (id.).
Those precedents are indistinguishable from Facebook's
situation, unless one woodenly applies "warrant" and "subpoena."
For example, in Matter of Abrams (62 NY2d 183 [1984]), we held
that recipients of subpoenas issued by the Attorney General, in
furtherance of a criminal ticket-scalping investigation, could
move to quash the subpoenas, which decision was appealable, even
though the employees themselves (unlike Facebook here) were the
targets of the investigation. In Matter of Boikess v Aspland (24
NY2d 136 [1969]) we entertained the appeal of motions to quash
subpoenas issued as part of a criminal investigation of marijuana
use by Stony Brook professors. Again, the subpoena targets were
themselves the potential criminal defendants, which is not the
case here.
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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, 62 NY2d at 191).18 The majority applies this test and
concludes that the SCA bulk warrants operate more like
traditional search warrants than like the subpoenas at issue in
People v Doe (272 NY 453 [1936]) and its progeny. Here, the
majority and I part ways.
The SCA warrants operate more like subpoenas than like
traditional search warrants in several significant, and
determinative, respects.19 First, rather than permitting state
18
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.
19
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" (Revised Record at 471). Although Section 12 as
ultimately drafted requires "ex parte orders or warrants" as the
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actors to seize property or private information directly, as
traditional warrants do, the SCA warrants compel a third party
(Facebook) to expend resources producing documents for an
investigation. Second, unlike traditional warrants, service
providers are not the targets of, or in any way involved in, the
underlying investigation but are instead the neutral repositories
of electronic information. Third, service providers must preserve
information pending the resolution of a motion to quash (§ 2703
[f]). As a result, SCA warrants can be challenged before
compliance, and the results of that challenge can be appealed,
without tipping off the subjects of the investigation or
otherwise compromising the state's interest in the preservation
of evidence. Fourth, our legal system is based on the
adversarial process. Ex parte proceedings are a sharp departure
from the norm, permissible only when required by exigent
circumstances. Such circumstances, often present in the case of
traditional warrants, are absent here. The District Attorney,
who argued at Supreme Court that the notice provisions governing
traditional search warrants under CPL 690.50 did not apply to SCA
warrants because of the unusual manner in which those warrants
were issued and executed, recognized that the 381 orders at issue
here operated more like subpoenas than warrants in some
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.
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respects.20 Indeed, the fact that parallel provisions of the SCA
contemplate allowing the government to subpoena, without notice
to Facebook's customers, nearly all of the material it requested
is fatal to the District Attorney's effort to distinguish the
true nature of the two types of order (§ 2703 [b] [1] [B] [i]; §
2705; see Microsoft, 829 F3d at 227 [2d Cir 2016] [Lynch, J.,
concurring].
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.21 Nevertheless, the
prior cases and the parties suggest several other factors that
bear on an Abrams-like inquiry into whether the underlying
proceeding is more criminal than civil in nature. Those factors
also tend to support the conclusion that Facebook has a right to
appeal.
Abrams itself focused on whether the contested motion could
arise in the context of a purely civil suit and on whetherrelief
sought had anything inherently to do with criminal substantive or
20
The majority asserts that "SCA warrants are governed by
the same substantive and procedural laws as traditional search
warrants", but cites CPL 690 and 700, and People v Tambe (71 NY2d
492 [1988]) -- all of which concern wiretapping warrants, not SCA
warrants.
21
The majority's contention that "SCA warrants are governed by
the same substantive and procedural laws as traditional search
warrants" (majority op at __) 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.
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procedural law (as well as on the uncertainty that criminal
charges would ever be filed against particular respondents,
discussed infra at n 22) (Abrams at 193-194). Because the SCA
warrants are substantively identical to subpoenas, and because
motions to quash subpoenas arise and are relieved in civil suits,
Facebook satisfies Abrams' test. Although the relief Facebook
seeks may include a review of a court's determination of probable
cause, that review is not inherent in its motion to quash, which
a court could grant because of a determination that the warrants
injured Facebook's business interests in a manner that had
nothing to do with criminal substantive or procedural law.
Indeed, the issue properly before us on appeal is whether
Facebook can appeal a determination that it lacked standing to
move to quash the warrants. That jurisdictional determination
has nothing to do with the criminal law and can be appealed and
settled without reviewing issues of probable cause, causing
substantial delay, or giving rise to interminable interlocutory
appeals.
Thecontention 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,
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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
longstanding practice 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 and Maintained by Microsoft
Corporation, --- F3d ---, ----- [2d Cir 2017] [Jacobs, J.,
dissenting]; id. at ----- [Cabranes, J., dissenting]; id. at ---
-- [Raggi, J., dissenting]; id. at ----- [Droney, J.,
dissenting]; see also In re Warrant to Search a Certain E-Mail
Account Controlled & Maintained by Microsoft Corp. [15 F Supp 3d
at 471] [calling the order "a hybrid: part search warrant and
part subpoena"]), and Judge Carney's majority opinion turned in
significant part on her finding that the SCA's primary emphasis
was on protecting user content (Microsoft, 829 F3d at 201, 205-
206, 217-219, 222; Microsoft, --- F3d at ---). In Microsoft, the
statute's purpose was served by finding Section 2703 (a) orders
were issued like warrants for the purposes of extraterritorial
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application; here, it is served by recognized those orders are
executed like subpoenas for the purposes of motions to quash.
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, 86 AD2d 40, 42 [3d Dept 1982]). Those cases
create a dichotomy between (a) appeals where "either of the
immediate parties to an underlying criminal action" can continue
to contest "the propriety of an order on the direct appeal from
any resulting judgment of conviction" and (b) appeals by innocent
third parties who would have no other day in court (id.). A
survey of the cases resolved by this Court suggests the rule
ascribed to us by the Appellate Division not only squares with
traditional notions of justice but also has considerable
predictive power.22 Because Facebook is here to protect its own
22
See e.g., Matter of Di Brizzi (303 NY 206 [1953]
[individual could appeal the denial of a motion to quash a
subpoena ordering he testify before the governor's crime
commission, a body without the power to charge or try
defendants]); Matter of Hynes v Karassik (47 NY2d 659 [1979]
[respondent previously acquitted in a criminal trial could appeal
an order unsealing the records of that case]); Matter of Codey
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rights, not only the rights of its users, and because no one
contends it will have any other opportunity to assert its own
rights on appeal, it should be able under the New York common law
(82 NY2d 521 [1993] [reporter subject to a State of New Jersey
subpoena to reveal confidential sources, who presence was
demanded by New Jersey pursuant to CPL 640.10 (2), could appeal
the CPL 640 determination]); People v Santangello (38 NY2d 536
[1976] [petitioner who had allegedly participated in the bribery
of police officers could not appeal the denial of an order
directing the prosecutor to admit the petitioner was the subject
of electronic surveillance]); Matter of Alphonso C. (38 NY2d 923
1976 [1976] [respondent who owned the car used in an attempted
homicide could not appeal an order directing him to appear in a
police line-up; separate appellant suspected of grand larceny
could not appeal an order directing him provide a handwriting
sample]); Bernstein v New York County District Attorney (67 NY2d
852 [1985] [petitioner could not appeal the disclosure of notices
of tax deficiency to prosecutors]). Indeed, the only exceptions
appear to be Abrams itself (allowing witnesses who might someday
be charged with the illegal sale and distribution of tickets to
large events) and Boikess (allowing university professors
suspected of smoking pot with their students to move to quash).
The aberration in Abrams can be explained by the Court's
suspicions that the investigation may result "in no criminal
charges or criminal complaints being filed at all" (Abrams at
193). In either case, both Abrams and Boikess depart from the
Appellate Division's taxonomy to allow an appeal Marin might have
foreclosed.
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], 306 NY 11 [1961]
[dismissing appeal from order of Court of General Sessions of
County of New York]) or that resulted from an innocent third
party's effort to intervene in an ongoing investigation (see
Newsday, 3 NY3d 651) are outside the scope of Marin and
inapposite to the issue at hand. The Supreme Court possesses
civil and criminal jurisdiction (Abrams, 62 NY 2d at 191), and,
contrary to the government's assertion, Facebook is not seeking
to involve itself in a criminal process. Instead, we are here
because its involvement has been compelled by the District
Attorney.
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to present the case for its motion to quash before the Appellate
Division -– and, if necessary, before this Court.
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.
I would remit the case to the Appellate Division to evaluate
the merits of Facebook's motion to quash, and neither have nor
should have any view on the merits determination.
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a. SCA Standing
Section 2703 (d) grants service providers a right to move to
quash or modify warrants (supra, Part I). Thus, to determine
standing, a plaintiff need only allege that it is a "service
provider" as defined by the statute. No one disputes that
Facebook 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.23
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
23
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.
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Facebook'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 complies 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.
Furthermore, as Facebook and amici also maintain, the direct
administrative costs of compliance are not the only potential
injuries at play here. Facebook argued in Supreme Court that
aiding the government in trampling the Fourth Amendment rights of
its users would be a breach of the legal obligations embodied in
its terms of service and data use policy. Here, Facebook also
maintained that ignoring its users' constitutional right to
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privacy would severely damage its ability to maintain and broaden
its user base.24
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, Facebook
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
24
The costs associated with this litigation illustrate how
seriously Facebook takes this threat to its financial well-being.
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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 exclusionary 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, there is another party
better situated and properly motivated to do so. Facebook is
correct to apply the traditional test.
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, 499 US 400, 410-411 [1991]).
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 (149 AD2d 187, 233 [1989]),
articulated and adopted what it then understood to be the federal
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standard. Rather than follow the Appellate Division's outdated
interpretation of federal practice, I apply the three-part Powers
test.
No one questions that Facebook satisfies two of Powers'
three criteria.25
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, "to allow
the failure to prosecute . . . to serve as a shield for the
allegedly illegal seizure and retention of private property by
25
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, 429 US 190 [1976)]).
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government agents would be to make a mockery of justice" (B.T.
Prods., 44 NY2d at 233).
The case at bar is even worse than contemplated in B.T.
Prods. Although some of the 319 users whose accounts were seized
but who were never charged no doubt owe their relief to
prosecutorial discretion, a number of the users –- such as the
high school students –- could not themselves have been suspected
of engaging in disabilities fraud and could thus never have had
an opportunity to challenge the seizures in a criminal court.
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
chambers, but let the average citizen try it!" (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
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"absurd" (id. at 364).26 The prospect of civil suits to
vindicate unlawful searches and seizures was offered as a reason
against adding article 1, § 12, to the New York Constitution.
Roundly rejecting that position, the delegates, and later the
People, adopted not just the language of the Fourth Amendment
verbatim, but added to it the language specifically sanctifying
electronic communications transmitted via a third party. Even
stipulating that each user would, despite the initial indefinite
gag order, be told at some point of the seizure, the mere formal
26
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? . . . Do you suppose
that they had any idea at all, when the 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 were fighting for
the right to resist an unreasonable search and seizure on the
part of King 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."
(Revised Record at 460)
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possibility of a civil suit does not foreclose Facebook from
asserting third-party standing as the litigant best placed to
vindicate its users' rights in practice, before a violation of
any rights has occurred, by way of the adversarial system on
which our rule of law rests.
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
someone, 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 get
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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. If there is any excuse
for a written constitution, if there has ever
been any excuse for a written constitution,
it is to write in there the protection for
the minority against the aggression and the
greed and the brute force of the majority."
(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.
"The issue," in the language of 1938,
"is both clear and simple. It is one of
honesty, plain and simple. 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 principle 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 baloney. 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."
(Revised Record at 504-5)
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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" (Revised Record at 462).
* * * * * * * * * * * * * * * * *
Order affirmed, without costs. Opinion by Judge Stein. Chief
Judge DiFiore and Judges Abdus-Salaam and Fahey concur. Judge
Rivera concurs in result in a separate concurring opinion. Judge
Wilson dissents in an opinion. Judge Garcia took no part.
Decided April 4, 2017
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