Delivering a blow to Facebook and other online platforms, the New York Court of Appeals ruled that Facebook could not appeal the New York state lower court’s denial of its motions challenging the issuance of bulk search warrants for Facebook users’ messages and other data. Over a vigorous dissent from Judge Wilson, the majority in In re 381 Search Warrants concluded that under New York state procedural law, an order denying a provider’s motion to quash a Stored Communications Act (SCA) search warrant is not appealable. Because the Court relied on procedural grounds to reject Facebook’s appeal, it did not address the merits of Facebook’s challenge.
According to this holding, in New York, once a lower state court denies a provider’s motion to quash a warrant, that decision is unreviewable – period – no matter the circumstances and even if the warrant was unconstitutional. The facts of this underlying case demonstrate the troubling consequences of the decision:
- In a single disabilities fraud investigation, a New York Supreme Court (trial court) issued 381 search warrants to Facebook for what amounted to 381 users’ entire history of Facebook use, including text, photos, and videos that each user had shared with their Facebook friends, all private messages between the user and anyone else, and the user’s searches and location.
- Given the highly unusual volume of search warrants issued in this investigation, Facebook repeatedly tried to negotiate a narrower scope with the District Attorney’s office.
- When these negotiation attempts failed, Facebook moved the issuing court to quash the warrants.
- That court denied Facebook’s motion, holding that Facebook lacked standing and that the warrants were supported by probable cause in any case – and it ordered Facebook to comply immediately with the 381 warrants.
- Facebook appealed to the NY Supreme Court Appellate Division, which dismissed its appeal on the ground that the lower court orders were non-appealable.
- After the Appellate Division denied Facebook’s application for a stay pending appeal, Facebook complied with the warrants.
- Finally, Facebook appealed to the New York Court of Appeals, which agreed that the lower court orders were non-appealable.
The rigidity of this holding, with absolute discretion granted to the trial court judge and a lack of recourse for the third-party provider, gives cause for concern. However, it is worth noting that this decision seems limited to appeals of motions to quash search warrants, because the court concluded there is no provision of New York state law that permits an appeal from an interlocutory order (such as an order denying a motion to quash a warrant) in a criminal case. However, the court stated: “By contrast, a motion to quash a subpoena issued prior to the commencement of a criminal action, even if related to a criminal investigation, ‘is civil by nature….’ 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….’” Based on this distinction, a provider can apparently still appeal an order denying a motion to quash a subpoena.
The court also suggested that a provider could obtain appellate jurisdiction to review a search warrant by refusing to comply with a warrant that it finds unlawful, taking a contempt sanction, and then appealing the sanction on the basis that the warrant was unlawful. As the court noted, Microsoft followed this approach in its well-known New York federal court case to challenge a search warrant issued for its data stored in Ireland.
Finally, Judge Rivera’s concurring opinion also offers some rays of hope. Judge Rivera only concurred in the judgment because Facebook, in its original motion to quash, did not assert a sufficient basis for relief under the SCA, 18 U.S.C. § 2703(d). According to Judge Rivera – and contrary to the majority’s holding – the SCA does permit Facebook to appeal the denial of a motion to quash in New York state court. If Facebook had asserted that the user data sought was unusually voluminous, that compliance would cause an undue burden, or that its business, reputational, or property interests were endangered by the warrants, then it appears Judge Rivera would have sided with Facebook. Providers seeking to challenge future warrants or orders in New York state court should be sure to consider the viability of the types of arguments listed in Judge Rivera’s “roadmap.”