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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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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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

- 3 -

- 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).

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- 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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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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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

- 9 -

- 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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- 12 - No. 16

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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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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