Written by Justin Hemmings
The Court of Appeals for the State of New York recently rejected Facebook’s appeal of its challenge to bulk search warrants issued pursuant to the Stored Communications Act (SCA) and separately challenged the warrants’ nondisclosure component. The Court affirmed the lower court’s ruling that Facebook could not appeal the rejection of its motion to quash the SCA warrant.
In this case, at the request of the Manhattan District Attorney’s Office, the New York Supreme Court issued 381 warrants directing Facebook to “retrieve, enter, examine, copy, analyze, and . . . search” the targeted accounts for information including “profile information, contact and financial account information, and ‘[a]ny public or private messages.’” (Maj. Opinion, p.3). Facebook challenged the warrants as unconstitutionally overbroad and lacking particularity. Facebook also challenged the order not to disclose the existence of the warrants to their customers. After the Supreme Court directed Facebook to comply with the order, and separately denied Facebook’s motion to compel disclosure of the supporting affidavit for the warrants, Facebook appealed both orders to the Appellate Division. The Appellate Division in turn dismissed both appeals on the grounds that New York Criminal Procedure Law does not “provide a mechanism for a motion to quash a search warrant, or for taking an appeal from a denial of such a motion.” (Maj. Opinion, p.5).
On appeal, Facebook argued that warrants issued under the SCA were closer to subpoenas than traditional warrants, as they compel a third party to disclose digital information. Despite the differences between the method of compliance required for a warrant under the SCA and a traditional search warrant, the Court noted that “[t]hese differences in execution, however, can be easily explained by the nature of the material sought.” (Maj. Opinion, p.11). Since Facebook is likely to be better equipped than law enforcement to search the company’s digital data (which may be held in different locations), these differences are meant to “ensure efficiency and minimize intrusion into the provider’s business.” (Id.) Therefore, despite some similarities, the Court held SCA warrants remain criminal in nature and cannot be appealed under New York law.
Facebook also argued that if orders relating to motions to quash SCA warrants are not appealable, those warrants can escape judicial review completely. Notably, the Court writes that the warrants are subject to judicial review as they must be supported by probable cause, and that “there are avenue of relief available to those subjects of SCA warrants who are ultimately prosecuted and who may, therefore, challenge the validity of the warrant, as well as potential civil remedies for those who are not formally accused” (Maj. Opinion, p.22) (emphasis added). Even though Facebook was challenging the nondisclosure component of the warrant (which would prohibit Facebook from providing the notice necessary for users who are not prosecuted to know their Fourth Amendment rights may have been violated), and the Court notes that Facebook’s Fourth Amendment concerns “may not be baseless,” nevertheless the Court held that the lack of relevant procedure for appealing a criminal warrant barred Facebook’s appeal in this case.
In a related case, on February 8, 2017, the U.S. District Court for the Western District of Washington at Seattle denied the U.S.’s motion to dismiss Microsoft’s First Amendment challenge to the nondisclosure portion of SCA warrants. In that case, the Court held that Microsoft’s claim that Section 2705(b) (which allows for the nondisclosure portion of an SCA warrant) was overbroad both facially and as applied was adequately supported. While the First Amendment claims survived, the Court held that Microsoft could not challenge the warrants on Fourth Amendment grounds as a third party asserting the rights of the targets of those warrants. Importantly, in this case Microsoft was not challenging a bulk warrant, but rather seeking declaratory relief for past and future harms caused by SCA warrants and accompanying nondisclosure requirements under Section 2705(b).
Alston & Bird is closely monitoring these and other cases regarding Stored Communications Act warrants and nondisclosure requirements.