Lynn K. Neuner and William T. Russell Jr. ()
We note with profound sadness the passing of Judge Sheila Abdul-Salaam. This is a tremendous loss for the Court of Appeals and for the profession as a whole.
The Court of Appeals recently considered a closely-watched case in which Facebook challenged the ability of a state prosecutor’s office to obtain information concerning its subscribers’ social media accounts. In In the Matter of 381 Search Warrants Directed to Facebook, the Court of Appeals declined to consider the constitutionality of search warrants served by the New York County District Attorney’s office on Facebook and determined that a Supreme Court order denying a motion to quash the warrants was not appealable. This was undoubtedly a disappointment to participants in the social media industry who were hoping that the court would take the opportunity to provide greater privacy protection to social media accounts.
In July 2013, Supreme Court granted a warrant application from the New York County District Attorney’s office supported by a 93-page investigator’s affidavit and issued 381 warrants to Facebook pursuant to the federal Stored Communications Act (SCA). The warrants were issued in connection with a criminal investigation by the DA’s office into allegedly widespread fraudulent disability claims filed by retired police officers and firefighters, among others, suspected of feigning mental illnesses caused by the events of Sept. 11, 2001. The warrants authorized the seizure of what was essentially the entire Facebook histories of 381 subscribers, including all text, photos and videos posted by the subscribers as well as any private messages they exchanged with other subscribers. The warrants precluded Facebook from notifying its subscribers of the existence of the warrants.
Facebook attempted to negotiate a more narrow scope and, when it was unsuccessful, it moved to quash the warrants on the ground that they were constitutionally defective because they were overbroad and lacked particularity. Supreme Court denied the motion, finding that Facebook lacked standing to assert Fourth Amendment rights of its subscribers and that the warrants were supported by probable cause and were not unconstitutionally overbroad. Facebook appealed the decision and sought a stay pending appeal. The Appellate Division, First Department, denied the stay application, and Facebook provided the information sought by the warrants. When a number of the investigation targets were indicted, the warrants were unsealed but the DA’s office continued to withhold the supporting affidavit. Facebook then moved for an order compelling disclosure of the affidavit, which Supreme Court denied. Facebook appealed that decision as well. The Appellate Division dismissed both appeals on the ground that the underlying orders were non-appealable.
The Court of Appeals granted leave to appeal and, in a 5-1 decision written by Judge Leslie Stein and joined by Chief Judge Janet DiFiore and Judges Sheila Abdus-Salaam and Eugene Fahey, affirmed the Appellate Division. Judge Jenny Rivera issued a concurring opinion and Judge Rowan Wilson issued a lengthy dissent. Judge Michael Garcia took no part in the decision.
The majority began by analyzing the provisions of the SCA pursuant to which the warrants were issued. See 18 U.S.C. §2701 et seq. The SCA prohibits providers of electronic communication and remote computing services from disclosing information regarding subscriber accounts or the contents of subscriber communications with certain limited exceptions. Relevant to the dispute before the court, §2703 sets forth several methods by which a government entity may obtain the contents of electronic communications, including: (1) a “warrant” issued under state or federal criminal procedures, which was the method used by the DA in this case, see §2703 (b)(1)(A), (c)(1)(a); and (2) a court order based upon facts showing that there are reasonable grounds to believe the communications “are relevant and material to an ongoing criminal investigation,” see §2703(d). Subsection 2703(d) further states that “[a] court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.” For purposes of the appeal, the majority assumed that Facebook could properly move to quash the warrant under §2703(d)—even though §2703(d) references a “court … order” rather than a “warrant”—and addressed whether the denial of such motion was appealable.
The Criminal Procedure Law does not authorize appeals of a motion court’s denial of a motion to quash a search warrant. On the other hand, a motion to quash a subpoena issued prior to the commencement of a criminal action commences a special civil proceeding, and an order resolving such motion is appealable. The crux of the dispute before the court was therefore whether the SCA “warrants” obtained by the DA are considered warrants or subpoenas under New York law. The majority and dissent agreed that the label “warrant” in the SCA was not dispositive and that they must look to the “true nature of [the] proceeding.” The majority found that the SCA warrants commenced a criminal proceeding principally because, under §2703, they were obtainable only by a government entity pursuant to criminal procedures and because Facebook’s motion raised Fourth Amendment concerns that are “quintessentially, of a criminal nature.” Judge Wilson, on the other hand, noted that, like a subpoenaed party, Facebook was not the target of a criminal investigation, and like a subpoena, the SCA warrants required Facebook to produce the responsive communications and did not authorize the government to seize them directly. The concurrence agreed with Judge Wilson but found that because Facebook asserted the Fourth Amendment rights of its users in moving to quash, as opposed to its own burden, it did not properly invoke §2703(d) and therefore could not appeal.
Given the 5-1 ruling, it appears that the court will not address the scope of the SCA or the constitutionality of warrants issued thereunder unless and until an investigation target moves to suppress the evidence obtained pursuant to an SCA warrant or a social media website refuses to comply and then appeals its contempt finding.