Apr. 07, 2017

Court of Appeals Holds That the Denial of a Motion to Quash Stored Communications Act Warrants to Facebook is Not Appealable

This is a case that warms the heart of appellate geeks like me, those who get unduly excited over issues of appellate jurisdiction. In Matter of 381 Search Warrants Directed to Facebook, Inc. (New York County District Attorney’s Office) (No. 16), previewed here, the Court of Appeals held that two orders denying Facebook’s motion to quash a bulk search warrant issued under the federal Stored Communications Act and denying Facebook’s request for production of the affidavit used by the New York County District Attorney’s Office to procure the warrant were not appealable under New York’s Criminal Procedure Law. The Court, therefore, affirmed the Appellate Division, First Department’s dismissal of Facebook’s appeals and declined to address Facebook’s primary arguments on appeal that the SCA bulk search warrant violated the Fourth Amendment because it lacked sufficient particularity, and that a gag order preventing Facebook from notifying its users of the execution of the search warrant violated the First Amendment.

The majority of the Court held that the appealability of the Supreme Court orders depended on whether the issuance of the SCA warrants commenced a new criminal proceeding or should be treated as a separate civil proceeding. That issue was critical, the Court held, because the Criminal Procedure Law does not provide for an appeal from an order in a criminal proceeding, while an order in a civil proceeding would be appealable. Looking to the nature of the SCA warrants at issue, the majority concluded that the SCA warrants were not akin to civil administrative subpoenas, but were intended by Congress to be criminal investigatory tools issued upon probable cause in compliance with state or federal warrant procedures. Thus, the Court held that the issuance of the SCA warrants to Facebook and the denial of Facebook’s motion to quash the warrants arose in a criminal proceeding, and were not appealable. “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,” the majority opined (Majority Opn, at 16).

The dissent, written by Judge Rowan Wilson, vehemently disagreed. Rejecting the majority’s reliance on the provisions of the Criminal Procedure Law to determine the appealability of the orders issued pursuant to the federal SCA, Judge Wilson would have resolved the case on a straightforward analysis of the terms of the SCA itself. “[B]ecause Congress granted service providers a statutory right to move to quash, it automatically provided standing and a right to appeal,” Judge Wilson would have held. Judge Wilson reasoned that this statutory right granted to service providers does not arise in the context of an already pending criminal proceeding, as the majority concluded, but allows service providers like Facebook to commence a separate civil proceeding to quash the SCA warrant. Thus, Judge Wilson concluded, “[t]he 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.” (Dissenting Opn, at 9).

Also notable about Judge Wilson’s dissent is that he began to show his judicial philosophy that the New York State Constitution often offers more protection for individual rights that does its federal counterpart. Indeed, Judge Wilson noted that the framers of the New York Constitution wrote in explicit protections for the telecommunications of individuals against intrusion by the government, even if held by independent third parties like Facebook. Should this continue as a trend in Judge Wilson’s writings, it could have a profound impact on moving the Court back toward emphasizing the independence of the guarantees of the New York Constitution.

Notwithstanding the disagreement over the appealability of the orders at issue in this case, the Court did note that a few issues concerning the issuance of SCA warrants, including “whether an individual 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,” remained open for the Court to consider at an appropriate time in the future, that is, upon appeal from a judgment of conviction of a criminal defendant based upon the evidence gathered by an SCA warrant (Majority Opn, at 24-25). Nor did the Court address whether Facebook had standing to assert the Fourth Amendment rights of its users, or “whether 18 USC § 2703 (d) authorizes a motion to quash an SCA warrant in the first instance.” (Majority Opn, at 25). Thus, it may well be that the Court will have occasion to revisit these issues again in the near future, especially considering the increasing prevalence of the use of social media posts as evidence in civil and criminal proceedings.

The Court of Appeals’ opinion can be found here.