We previously posted about a case before the New York Court of Appeals that concerned whether Facebook has the legal standing to challenge search warrants seeking its users’ data. In April, the court sided with the Manhattan District Attorney’s office and rejected Facebook’s challenge. The three opinions by the judges—particularly the concurrence by Judge Jenny Rivera—provide insight into this evolving area of law.
Readers will recall that the dispute, In re 381 Search Warrants Directed to Facebook, Inc. and Dated July 23, 2013, arose after the Manhattan D.A.’s office, which was investigating a large disability benefits fraud, obtained warrants commanding Facebook to comprehensively search the accounts of 381 Facebook users, including their friends, posts, private messages, and photographs. The warrants also barred Facebook from disclosing their existence to the users. Facebook filed a motion before the trial court to quash the warrants, challenging both their breadth and the nondisclosure requirement. The D.A. defended the need for the secret warrants, and also questioned whether Facebook, which was not a target of the investigation, even had standing to contest the warrants. The trial court denied Facebook’s motion, and the First Department dismissed Facebook’s appeal. The D.A. eventually indicted 62 of the targeted Facebook users—relying in part on those user’s Facebook photos.
Writing for the majority, New York Court of Appeals Judge Leslie Stein affirmed the First Department ruling dismissing Facebook’s appeal. The majority acknowledged that the warrants at issue bore some similarities to subpoenas, due to the nature of the electronic information being sought. But the Court determined that the warrants—which were issued under the Stored Communications Act (“SCA”)—should nevertheless be treated as warrants. As such, the trial court’s order denying Facebook’s motion to quash the warrants was not appealable under New York law. Nor, the majority reasoned, does the SCA entitle Facebook to appellate review in New York courts.
The lone dissenter, Judge Rowan Wilson, wrote that, in his view, federal law gives Facebook an avenue of appeal. He concluded that Facebook had standing to bring such an appeal, both to redeem its own rights and those of its users. Judge Wilson also noted that the Court’s decision left Facebook and its affected 381 users—the overwhelming majority of whom were never charged with a crime—without recourse.
Judge Jenny Rivera’s concurrence split the difference. First, she agreed with the majority that the order denying Facebook’s motion to quash was not reviewable, but only because Facebook did not argue that the warrants constituted an undue burden on the company, or that its business and reputational interests were endangered by the warrants. The plain language of the SCA, she wrote, would have applied to Facebook and to the warrants in this case. Instead, Facebook sought to quash the warrants on behalf of its users, a basis for relief that is not found in the SCA.
On the other hand, Judge Rivera sided with the dissent in concluding that, if the correct grounds were asserted, the SCA would grant Facebook a right to appeal the trial court’s denial of its motion to quash. The right to appellate review, she wrote, is a component of the SCA’s statutory framework protecting a service provider from government overreach. And contrary to the majority’s view, Judge Rivera concluded, state laws or rules about appellate review should not be applied to SCA warrants.
As the divided Court showed in this case, judges continue to struggle with how to adapt decades-old precedents, and the thirty-year-old SCA, to the age of the Internet, cloud computing, and social media. We’ll continue to report on cases that address with issues.