In re 381 Search Warrants Directed to Facebook, Inc.

Decision Date04 April 2017
Citation55 N.Y.S.3d 696,78 N.E.3d 141,29 N.Y.3d 231
Parties In the Matter of 381 SEARCH WARRANTS DIRECTED TO FACEBOOK, INC., Appellant. New York County District Attorney's Office, Respondent. (And Another Proceeding.).
CourtNew York Court of Appeals Court of Appeals

Gibson, Dunn & Crutcher LLP, New York City (Thomas H. Dupree, Jr., of the District of Columbia bar, admitted pro hac vice, Orin Snyder, Alexander H. Southwelland Gabriel K. Gillett of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Alan Gadlin of counsel), for respondent.

New York Civil Liberties Union Foundation, New York City (Mariko Hirose and Arthur Eisenberg of counsel), American Civil Liberties Union Foundation, New York City (Alex Abdo of counsel), New York State Association of Criminal Defense Lawyers, New York City (Brendan White of counsel), and Center for Democracy & Technology, Washington, D.C. (Gabriel Rottman of counsel), for New York Civil Liberties Union and others, amici curiae.

Holwell Shuster & Goldberg LLP, New York City (Richard J. Holwell, John M. DiMatteo, Daniel M. Sullivan and Benjamin F. Heidlage of counsel), for Foursquare Labs, Inc., and others, amici curiae.

O'Melveny & Myers LLP, New York City (Brett J. Williamson, Nate Asher and David K. Lukmire of counsel), O'Melveny & Myers, LLP, San Francisco, California (Cara L. Gagliano of counsel), Brennan Center for Justice at NYU School of Law, New York City (Faiza Patel and Michael Price of counsel), and Peter Micek and Amie Stephanovic, Access Now, New York City, for Brennan Center for Justice at NYU School of Law and others, amici curiae.

Thomas P. Zugibe, Kelly Wolford and Morrie I. Kleinbart, for District Attorneys Association of the State of New York, amicus curiae.

Debevoise & Plimpton LLP, New York City (Helen V. Cantwell, Jarrod L. Schaeffer and Laura J. Samuels of counsel), for Matthew L. Biben and others, amici curiae.

Perkins Coie LLP, New York City (Jeffrey D. Vanacore, Eric D. Miller, Todd M. Hinnen and Erin K. Earl of counsel), ZwillGen PLLC, Washington, D.C. (Jeffrey Landis of counsel), and Red Hat, Inc., Raleigh, North Carolina (David B. Perry of counsel), for, Inc. and others, amici curiae.



In this matter, we are asked to determine the appealability of two Supreme Court orders. The first order denied Facebook, Inc.'s motion to quash certain warrants, issued pursuant to the Federal Stored Communications Act, that sought the account information and communications of various Facebook subscribers in connection with a criminal investigation. The second order denied Facebook's motion to compel disclosure of the affidavit supporting the warrant application.

This case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizure, and the parameters of a federal statute establishing methods by which the government may obtain certain types of information. Nevertheless, while it may be tempting for this Court to address those issues, we must—in this case as in every other case—first ascertain whether we possess the necessary jurisdiction to do so under our own constitution and statutes. This presents equally important issues regarding the separation of powers among our three branches of government. With these principles in mind, because the orders resolving Facebook's motions relate to warrants issued in a criminal proceeding, and the Criminal Procedure Law does not authorize an appeal from either order, we are constrained by law to affirm the Appellate Division order dismissing Facebook's appeals to that Court.


In July 2013, Supreme Court issued 381 warrants directed at Facebook upon a warrant application by the New York County District Attorney's Office that was supported by an investigator's affidavit. The warrants, based upon a finding of probable cause, sought subscriber information and content from numerous user accounts in connection with a pending criminal investigation into allegations of widespread Social Security Disability fraud involving the crimes of larceny and filing a false instrument. The warrants directed Facebook "to retrieve, enter, examine, copy, analyze, and ... search [each] TARGET FACEBOOK ACCOUNT for the ... [specified] evidence and property, and ... to bring it before the [c]ourt without unnecessary delay." The specified evidence included, among other things, each target account holder's profile information, contact and financial account information, groups, photos and videos posted, historical login information, and "[a]ny public or private messages." The warrants prohibited Facebook from notifying its subscribers or otherwise disclosing the existence or execution of the warrants, in order to prevent interference with the investigation.

Facebook moved to quash the warrants, arguing that they were constitutionally defective because they were overbroad and lacked particularity; Facebook also challenged the nondisclosure component of the warrants. Supreme Court denied the motion, holding that Facebook lacked standing to assert any expectation of privacy or Fourth Amendment challenge on behalf of the individual account holders and that, in any event, the warrants were supported by probable cause and were not unconstitutionally overbroad. Supreme Court also rejected Facebook's challenge to the nondisclosure clauses of the warrants, concluding that disclosure of the warrants to the subscribers would risk jeopardizing the ongoing criminal investigation. The court directed Facebook to immediately comply with the warrants.

Facebook appealed Supreme Court's order, and sought a stay thereof pending resolution of its appeal. After the Appellate Division denied Facebook's application for a stay, Facebook complied with the warrants and furnished the requested digital data.

While Facebook's appeal was still pending, some of the targeted Facebook users were indicted for crimes stemming 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 both of Facebook's appeals on the ground that they were taken from nonappealable orders (132 A.D.3d 11, 14 N.Y.S.3d 23 [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, 14 N.Y.S.3d 23 ). 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, 14 N.Y.S.3d 23 ).

This Court granted Facebook leave to appeal (26 N.Y.3d 914, 2015 WL 8804263 [2015] ), and we now affirm.


The warrants in question were issued, in accordance with the procedures of CPL article 690, pursuant to title II of the Electronic Communications Privacy Act of 1986, officially entitled the "Stored Wire and Electronic Communications and Transactional Records Access" and commonly referred to as the Stored Communications Act or the SCA (see Electronic Communications Privacy Act of 1986, Pub. L. 99–508, tit. II, 100 U.S. Stat. 1860, codified as amended at 18 U.S.C. § 2701 et seq. ). When enacting 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., 2d Sess., reprinted in 1986 U.S.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, 3559).

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 U.S.C. § 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. 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 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 ...

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