Case Summary and Outcome

The New York State Court of Appeals affirmed that internet service providers cannot appeal a judge’s decision to issue search warrants in a criminal case, even in situations where the internet service provider believes the search warrants violate its users’ constitutional rights. In July 2013, the lower court of New York issued 381 warrants that required Facebook to hand over the personal data of its users implicated in a Social Security Disability fraud criminal investigation. Facebook filed a motion to quash the warrants arguing that they were unconstitutionally overbroad, violated the privacy rights of their users, and had serious Fourth Amendment implications. The lower court denied the motion finding that Facebook did not have the standing to raise constitutional concerns on behalf of its users. The Court of Appeals concluded that it was unable to rule on the constitutional issues and was constrained by law to dismiss Facebook’s appeals because it lacked statutory authority and therefore did not have jurisdiction to review a determination in a criminal proceeding.

This case dealt a blow to those seeking to expand internet privacy protections and the attempt by Facebook to fight what it considers to be fishing expeditions by prosecutors.  Facebook has said it is considering its options and whether to take the case to the federal courts.

Facts

In July 2013, a New York lower court granted the New York County District Attorney’s Office request for 381 warrants requiring Facebook to release the account data and communications of subscribers connected to a criminal investigation. The warrants, based on a finding of probable cause, sought information on Facebook users believed to be connected to widespread Social Security Disability fraud. The information requested 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 about the warrants.

Facebook filed a motion to quash the warrants arguing that they were unconstitutionally overbroad, violated the privacy rights of their users, and had serious Fourth Amendment implications. The lower court denied the motion finding that Facebook did not have the standing to raise constitutional concerns on behalf of its users. The lower court also found that because the warrants were issued based on a finding of probable cause they were not unconstitutionally overbroad. The lower court also rejected Facebook’s challenges to the nondisclosure clause of the warrant stating that notification could seriously hinder or derail the ongoing criminal investigation. The lower court ordered Facebook to immediately comply with the warrants. Facebook appealed and upon the denial of a stay, complied with the warrants releasing the requested data.

While its appeal was still pending, some of the Facebook users were indicted on the criminal charges. In response, the lower court unsealed the warrants and the investigator’s supporting affidavit and Facebook was allowed to notify its users who had been targeted of the existence of the warrants. However, the New York County District Attorney’s Office refused to disclose the investigator’s supporting affidavit to Facebook and the public. Facebook filed a motion to compel its release.  The District Attorney’s Office objected arguing that the unsealing of the documents did not include public access and the investigator’s supporting affidavit had yet to be provided to the indicted individuals. The lower court sided with the District Attorney’s Office and, once again, denied Facebook’s request to compel disclosure of the investigator’s supporting affidavit. Facebook also appealed this order.

The Appellate Division dismissed both Facebook’s appeals stating that the lower court orders were non-appealable. The Appellate Division stated that there was no statutory authority under New York criminal procedure law for the direct review of interlocutory orders. The Appellate Division rejected Facebook’s motion that the warrants be treated as subpoenas for the purpose of appeals. Facebook appealed to the State’s highest court.

Decision Overview

J. Stein delivered the opinion of the Court of Appeals and found that the State Supreme Court’s orders denying Facebook’s motion to quash the warrants and to compel disclosure of the supporting affidavit were procedurally unappealable. Therefore the Court was unable to address constitutional issues and had no alternative but to affirm the decisions of the Appellate Division of the Supreme Court of the State of New York.

The Court noted that the case involved the constitutional rights to privacy and unreasonable search and seizures (the Fourth Amendment) but said it must first discern if it had jurisdiction to address those issues.

The Court stated the warrants were issued in compliance with New York Criminal Procedure Law pursuant to Title II of the Electronic Communications Privacy Act of 1986 (the so-called Stored Communications Act and hereinafter referred to as “SCA”). The SCA was designed by Congress to strike a balance between the Fourth Amendment protections, privacy expectations, and legitimate law enforcement needs in an age of emerging technologies. The SCA prohibits “providers of electronic communications,” such as Facebook, from disclosing user data and communications unless one of three primary exceptions applies. The first exception and the exception used in this case allows for government access when “a ‘warrant’ is issued in accordance with state or federal criminal procedure by a court of competent jurisdiction . . . (d) upon a showing of ‘specific and articulable fact’ demonstrating ‘reasonable grounds to believe the information sought is ‘relevant and material to an ongoing criminal investigation.” The Court primarily considered if an order regarding a motion to quash an SCA warrant can be appealed, based on New York precedent that determinations in a criminal proceeding cannot be appealed unless provided for in a statute. The Court stated that there was no such statute in this case and that New York does not allow for civil appeals to be brought from an order arising from a criminal proceeding.

Facebook argued that the nature of the warrant, the information and action it compelled, was closer to that of a subpoena and should be treated as such. The Court disagreed. The warrants were issued in accordance with the Criminal Procedure Law pursuant to the federal Stored Communications Act which draws a clear distinction between warrants and subpoenas and there was no indication that Congress intended for SCA warrants to be treated as subpoenas.

The Court said its own jurisprudence required it to 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. Conducting that analysis in this case, the Court concluded that an SCA warrant, and the relief sought in a challenge to such a warrant, had arisen in a criminal, not a civil, proceeding.

In conclusion, the Court treated the SCA warrant as it would treat a traditional warrant under New York Criminal Procedure Law and found that it did not have jurisdiction to review a determination in a criminal proceeding without express statute authority. It could not therefore address any constitutional issues that might be involved.

The Court accordingly affirmed the Appellate Division’s order dismissing Facebook’s appeals from the Supreme Court’s denial of its motions to quash the warrants and to compel disclosure of the supporting affidavit.