To be Argued by: THOMAS H. DUPREE, JR.

(Time Requested: 30 Minutes)

APL-2015-00318 New York County Clerk’s Index Nos. 30207/13 and 30178/14

Court of Appeals of the

State of New York

In re 381 Search Warrants Directed to Facebook, Inc. and Dated July 23, 2013

FACEBOOK, INC.,

Appellant,

– against –

NEW YORK COUNTY DISTRICT ATTORNEY’S OFFICE,

Respondent.

–––––––––––––––––––––––––––––––

In the Matter of the Motion to Compel Disclosure of the Supporting Affidavit Relating to Certain Search Warrants Directed to Facebook, Inc., Dated July 23, 2013

FACEBOOK, INC.,

Appellant,

– against –

NEW YORK COUNTY DISTRICT ATTORNEY’S OFFICE,

Respondent.

BRIEF OF APPELLANT

Of Counsel: ORIN SNYDER ALEXANDER H. SOUTHWELL THOMAS H. DUPREE, JR. (admitted pro hac vice) GABRIEL K. GILLETT

GIBSON, DUNN & CRUTCHER LLP Attorneys for Appellant 200 Park Avenue New York, New York 10166 Tel.: (212) 351-4000 Fax: (212) 351-4035

February 16, 2016

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to 22 NYCRR § 500.1(f), Appellant Facebook, Inc. states that it is

a publicly traded corporation, has no corporate parent, and has the following

significant subsidiaries:

• Andale, Inc. (Delaware)

• Edge Network Services Limited (Ireland)

• Facebook Ireland Holdings Limited (Ireland)

• Facebook Ireland Limited (Ireland)

• Facebook Operations, LLC (Delaware)

• Oculus VR, LLC (Delaware)

• Parse, LLC (Delaware)

• Pinnacle Sweden AB (Sweden)

• Siculus, LLC (Delaware)

• Vitesse, LLC (Delaware)

• WhatsApp Inc. (Delaware)

ii

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................... 1

QUESTIONS PRESENTED ...................................................................................... 7

STATEMENT OF JURISDICTION.......................................................................... 8

PRESERVATION OF ERROR ................................................................................. 8

STATEMENT OF FACTS ........................................................................................ 9

I. Facebook .......................................................................................................... 9

II. The Bulk Warrants .........................................................................................12

III. The Trial Court Denies Facebook’s Motion To Quash. ................................14

IV. The Government Indicts A Small Fraction Of Targeted Facebook Users, And The Court Unseals The Investigator’s Affidavit. .......................15

V. The Appellate Division Dismisses Facebook’s Appeals. ..............................17

ARGUMENT ...........................................................................................................18

I. FACEBOOK HAS A RIGHT TO CHALLENGE THE BULK WARRANTS. ................................................................................................19

A. Both the Stored Communications Act and New York Law Allow Challenges to SCA Warrants. ..................................................20

1. Facebook Has a Right to Challenge the Warrants Under the Stored Communications Act. ..............................................20

2. Facebook Also Has a Right to Challenge the Warrants Under New York Law. ..............................................................25

B. Facebook Has Standing to Defend the Constitutional Rights of Its Users. ..............................................................................................26

TABLE OF CONTENTS (continued)

Page

iii

C. The Trial Court’s Order Is Appealable. .............................................. 32

II. THE BULK WARRANTS ARE UNCONSTITUTIONAL. ........................ 37

A. The Bulk Warrants Violate the Fourth Amendment Because They Are Overbroad and Lack Sufficient Particularity. ..................... 37

1. The Fourth Amendment Applies With Strong Force in the Digital Age. ......................................................................... 37

2. The Bulk Warrants Violate the Fourth Amendment. ................ 41

B. The Gag Provisions Violate the Stored Communications Act and the First Amendment. ................................................................... 46

1. The Gag Provisions Violate the Stored Communications Act. ........................................................................................... 46

2. The Gag Provisions Violate the First Amendment. .................. 47

III. THE GOVERNMENT HAS IMPROPERLY WITHHELD THE INVESTIGATOR’S AFFIDAVIT PURPORTEDLY JUSTIFYING THE BULK WARRANTS. ........................................................................... 49

CONCLUSION ........................................................................................................ 54

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Gant, 556 U.S. 332 (2009) .............................................................................................38

Associated Press v. Bell, 128 A.D.2d 59 (1st Dep’t 1987), aff’d, 70 N.Y.2d 32 (1987)..............................53

Butterworth v. Smith, 494 U.S. 624 (1990) .............................................................................................48

Camara v. Mun. Court of S.F., 387 U.S. 523 (1967) .............................................................................................38

Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992) .................................................................................................36

Craig v. Boren, 429 U.S. 190 (1976) .............................................................................................29

Cunningham v. Nadjari, 39 N.Y.2d 314 (1976) .................................................................................... 33, 36

Danco Labs. v. Chem. Works of Gedeon Richter, 274 A.D.2d 1 (1st Dep’t 2000) ................................................................ 50, 52, 53

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .............................................................................................37

Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596 (1982) ...................................................................................... 36, 49

Groh v. Ramirez, 540 U.S. 551 (2004) .............................................................................................45

In re Appeal of Application for Search Warrant, 71 A.3d 1158 (Vt. 2012).......................................................................................40

TABLE OF AUTHORITIES (continued)

Page(s)

v

In re Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, 2013 WL 4647554 (D. Kan. Aug. 27, 2013) ........................................................39

In re Applications for Search Warrants for Information Associated with Target Email Address, 2012 WL 4383917 (D. Kan. Sept. 21, 2012) .......................................................42

In re Directives to Yahoo! Inc., Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 2008 WL 10632524 (FISA Ct. Rev. Aug. 22, 2008) ...........................................26

In re Sealed Search Warrants Issued June 4 and 5, 2008, 2008 WL 5667021 (N.D.N.Y. July 14, 2008) ......................................................51

In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562 F. Supp. 2d 876 (S.D. Tex. 2008) .................................................... 47, 48, 50

In re Search of Google Email Accounts Identified in Attachment A, 92 F. Supp. 3d 944 (D. Alaska 2015) ...................................................................44

In re Search of Google Email Accounts, 99 F. Supp. 3d 992 (D. Alaska 2015) ...................................................................24

In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244 (D.D.C. 2003) .............................................................. 27, 29

In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 15 F. Supp. 3d 466 (S.D.N.Y. 2014) ............................................................. 21, 24

In re: [REDACTED]@gmail.com, 62 F. Supp. 3d 1100 (N.D. Cal. 2014) .......................................................... 21, 45

In the Matter of Search Warrant for: [Redacted]@hotmail.com, 74 F. Supp. 3d 1184 (N.D. Cal. 2014) .......................................................... 46, 47

In the Matter of the Search of Info. Associated with the Facebook Account Identified by the Username Aaron.Alexis, 21 F. Supp. 3d 1 (D.D.C. 2013) ...........................................................................45

TABLE OF AUTHORITIES (continued)

Page(s)

vi

Los Angeles Cnty. v. Davis, 440 U.S. 625 (1979) .............................................................................................36

Maryland v. Garrison, 480 U.S. 79 (1987) ........................................................................................ 38, 39

Matter of Abrams, 62 N.Y.2d 183 (1984) .............................................................. 4, 25, 32, 33, 34, 35

Matter of Alphonso C., 38 N.Y.2d 923 (1976) ...........................................................................................33

Matter of Application of United States of Am., 45 F. Supp. 3d 1 (D.D.C. 2014) ...........................................................................28

Matter of B.T. Prods. v. Barr, 44 N.Y.2d 226 (1978) ................................................................................ 7, 25, 32

Matter of Boikess v. Aspland, 24 N.Y.2d 136 (1969) ...........................................................................................33

Matter of Codey (Capital Cities, Am. Broad. Corp.), 82 N.Y.2d 521 (1993) .................................................................................... 33, 35

Matter of Cohen v. Demakos, 144 A.D.2d 605 (2d Dep’t 1988) .........................................................................36

Matter of Grand Jury Subpoena for: [Redacted]@yahoo.com, 79 F. Supp. 3d 1091 (N.D. Cal. 2015) .......................................................... 28, 48

Matter of Grand Jury Subpoenas, 72 N.Y.2d 307 (1988) ...........................................................................................36

Matter of Har Enters. v. Town of Brookhaven, 74 N.Y.2d 524 (1989) ...........................................................................................36

Matter of Herald Co. v. Weisenberg, 59 N.Y.2d 378 (1983) ...........................................................................................49

TABLE OF AUTHORITIES (continued)

Page(s)

vii

Matter of Hynes v. Karassik, 47 N.Y.2d 659 (1979) ...........................................................................................34

Matter of Newsday, Inc., 3 N.Y.3d 651 (2004) .............................................................................................53

Matter of Santangello v. People, 38 N.Y.2d 536 (1976) ...........................................................................................33

Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430 (1979) ...........................................................................................36

McVicker v. King, 266 F.R.D. 92 (W.D. Pa. 2010) ............................................................................31

N.Y. Cnty. Lawyers’ Ass’n v. State of N.Y., 294 A.D.2d 69 (1st Dep’t 2002) .................................................................... 29, 30

NAACP v. Alabama, 357 U.S. 449 (1958) .............................................................................................29

Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) .............................................................................................27

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) .............................................................................................49

Payton v. New York, 445 U.S. 573 (1980) .............................................................................................38

People v. Bagley, 279 A.D.2d 426 (1st Dep’t 2001) .........................................................................36

People v. Brown, 96 N.Y.2d 80 (2001) ...................................................................................... 38, 42

People v. Burton, 189 A.D.2d 532 (3d Dep’t 1993) .........................................................................53

TABLE OF AUTHORITIES (continued)

Page(s)

viii

People v. Cruz, 86 A.D.3d 782 (3d Dep’t 2011) ...........................................................................34

People v. Geoghegan, 76 A.D.2d 894 (2d Dep’t 1980) ...........................................................................34

People v. Johnson, 103 A.D.2d 754 (2d Dep’t 1984) .........................................................................36

People v. Kern, 149 A.D.2d 187 (1989), aff’d, 75 N.Y.2d 638 (1990) .........................................30

People v. Marin, 86 A.D.2d 40 (2d Dep’t 1982) .......................................................... 25, 27, 35, 36

People v. Nieves, 36 N.Y.2d 396 (1975) .................................................................................... 43, 52

People v. Purley, 297 A.D.2d 499 (1st Dep’t 2002) .........................................................................36

People v. Weaver, 12 N.Y.3d 433 (2009) .............................................................................. 19, 37, 40

Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) .............................................................................................50

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) .........................................................................................47

Riley v. California, 134 S. Ct. 2473 (2014) .....................................................................................4, 40

Samuels v. Montefiore Med. Ctr., 49 A.D.3d 268 (1st Dep’t 2008) ...........................................................................16

Sierra Club v. Vill. of Painted Post, 26 N.Y.3d 301 (2015) ...........................................................................................28

TABLE OF AUTHORITIES (continued)

Page(s)

ix

Soc’y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761 (1991) ...........................................................................................27

State v. Bachman, 2015 WL 46547 (Minn. Ct. App. Jan. 5, 2015) ...................................................40

State v. Keodara, 2015 WL 8122464 (Wash. Ct. App. Nov. 2, 2015) ...................................... 40, 43

State v. Sprunger, 811 N.W.2d 235 (Neb. 2012) ...............................................................................41

Trawinski v. Doe, 2015 WL 3476553 (N.J. Super. Ct. App. Div. June 3, 2015) ..............................31

United States v. All Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577 (S.D.N.Y. 2009) ..................................................................51

United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) ............................................................................ 50, 51

United States v. Bach, 310 F.3d 1063 (8th Cir. 2002) ..............................................................................22

United States v. Barthelman, 2013 WL 3946084 (D. Kan. July 31, 2013) .........................................................43

United States v. Bus. of Custer Battlefield Museum, 658 F.3d 1188 (9th Cir. 2011) ..............................................................................50

United States v. Cioffi, 668 F. Supp. 2d 385 (E.D.N.Y. 2009) ..................................................................21

United States v. Embry, --- F. App’x ---, 2015 WL 5334191 (9th Cir. Sept. 15, 2015) .............................42

United States v. Galpin, 720 F.3d 436 (2d Cir. 2013) .................................................................... 38, 39, 40

TABLE OF AUTHORITIES (continued)

Page(s)

x

United States v. George, 975 F.2d 72 (2d Cir. 1992) ............................................................................ 42, 44

United States v. Jones, 132 S. Ct. 945 (2012) ...........................................................................................40

United States v. Leary, 846 F.2d 592 (10th Cir. 1988) ..............................................................................44

United States v. Otero, 563 F.3d 1127 (10th Cir. 2009) ............................................................................42

United States v. Rosa, 626 F.3d 56 (2d Cir. 2010) ............................................................................ 41, 43

United States v. Winn, 79 F. Supp. 3d 904 (S.D. Ill. 2015) ......................................................................44

United States v. Zemlyansky, 945 F. Supp. 2d 438 (S.D.N.Y. 2013) ..................................................................44

Statutes

18 U.S.C. § 2703(a) .................................................................................................20

18 U.S.C. § 2703(d) ................................................................................ 2, 22, 24, 27

18 U.S.C. § 2703(g) .......................................................................................... 22, 34

18 U.S.C. § 2705(b) .................................................................................... 37, 46, 47

CPL § 690.05 ...........................................................................................................23

CPLR § 5602 (a)(1)(i) ................................................................................................ 8

Other Authorities

82 N.Y. Jur. 2d Parties § 13 (2016) .........................................................................29

S. Rep. No. 99-541 (1986) .......................................................................................22

TABLE OF AUTHORITIES (continued)

Page(s)

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U.S. Dep’t of Justice, Criminal Division, Computer Crime and Intellectual Property Section, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 134 (2009) ..................................................21

William K. Rashbaum and James C. McKinley, Jr., Charges for 106 in Huge Fraud Over Disability, The New York Times (Jan. 8, 2014) ..............................15

INTRODUCTION

This case presents the Court with the opportunity to set a historic precedent

establishing that the Fourth Amendment remains a bulwark against unreasonable

Government seizures in the digital age. This ruling is all the more urgent because,

more than ever before, technology enables the Government to invade and capture

the contents of a private citizen’s life.

This appeal arises from the New York County District Attorney’s

investigation into disability fraud by retired public employees. In the hope of

finding evidence, the District Attorney prepared hundreds of search warrants

directed to Facebook seeking electronic information.

The warrants were remarkable. They demanded that Facebook search for,

collect, and turn over to the Government virtually all communications, data, and

information from 381 different individual Facebook accounts covering a cross-

section of America: high schoolers to grandparents, school teachers to

soldiers. The warrants contained no date-range limitations, no limitations on the

content to be seized and inspected, and no procedures for the return of the seized

information. All 381 warrants were essentially carbon-copy, cut-and-paste

jobs. Other than the name of the individual user account, the warrants were

identical to one another, and all 381 of them were ostensibly supported by a single,

93-page affidavit prepared by an investigator in the District Attorney’s office. The

2

warrants also contained blanket gag provisions with no expiration date, barring

Facebook—in perpetuity—from revealing what the Government was forcing it to

turn over.

The trial court issued an order directing the execution of the warrants under

the Stored Communications Act, 18 U.S.C. § 2703, a federal statute establishing

the ground rules governing law enforcement requests for electronic data. Congress

sought through the Act to strike a balance between the legitimate needs of law

enforcement and the privacy rights of citizens—and to give companies that store

electronic data, like Facebook, the right to challenge unreasonable Government

demands. See 18 U.S.C. § 2703(d) (service provider may move to “quash or

modify” court orders made under Section 2703).

Although Facebook cooperates with valid and legitimate law enforcement

requests for data, it is also committed to protecting its users from overbroad

Government intrusions. In this case, the Government’s actions were so extreme

that Facebook challenged the warrants in court.

Facebook moved to quash, contending that the Fourth Amendment did not

permit a Government sweep of the personal and private thoughts, images and

communications of hundreds of people, the majority of whom bore little relation to

the disability-fraud scheme under investigation. Facebook also moved to compel

3

the Government to produce the investigator’s affidavit that supposedly justified the

warrants.

The trial court denied Facebook’s motion to quash and Facebook complied

with the warrants, while continuing to pursue its challenge on appeal. Facebook

pointed out that although the Government had seized the Facebook accounts of

nearly 400 different people, it only charged 62 of them. Thus, hundreds of New

York citizens never had—and never would have—any opportunity to challenge the

lawfulness of the Government’s seizure and continued retention of their

information. Facebook’s challenge was their day in court and the only way their

constitutional rights could be vindicated.

The Appellate Division dismissed Facebook’s appeal. The court

emphasized that “[j]udges, as guardians of our Constitution, play an indispensable

role in protecting the rights and liberties of individuals entrenched in the

Constitution.” A.30. But while it “appreciate[d] Facebook’s concerns about the

scope of the bulk warrants,” the court nonetheless deemed itself powerless in this

case because it believed that Facebook did not have a right to challenge the

warrants and that the trial court’s ruling was “nonappealable.” A.30, 32.

This Court should reverse the Appellate Division and hold that Facebook has

a right to challenge the warrants. The Stored Communications Act specifically

allows Facebook to move to quash an order issued under 18 U.S.C. § 2703—the

4

very section on which the trial court relied in ordering execution of the

warrants. New York law also gives Facebook the right to challenge the

warrants. This Court has held that a third party may move to quash Government

demands for information in its possession—even when those demands occur in the

context of a criminal investigation—and that the denial of such a motion is an

appealable order. See Matter of Abrams, 62 N.Y.2d 183, 192 (1984).

The Court should further hold that the warrants are unconstitutional under

the United States and New York Constitutions. They are modern incarnations of

the notorious general warrants that gave rise to the Fourth Amendment; they order

the seizure of vast amounts of information that have no relevance to the disability-

related crimes under investigation. Each Facebook account is a virtual digital

home containing a person’s private thoughts, images and communications, only a

small portion of which could possibly be relevant to the narrow crime of disability

fraud. As the Supreme Court recently recognized in a unanimous decision, “[t]he

sum of an individual’s private life can be reconstructed” through his or her

electronic information, which includes “a digital record of nearly every aspect of

their lives—from the mundane to the intimate.” Riley v. California, 134 S. Ct.

2473, 2489-90 (2014). The warrants in this case are the digital equivalent of the

permanent seizure of everything in a person’s home while investigating a narrow

crime. Except here, it was not a single home, but an entire neighborhood of nearly

5

400 homes. The search and seizure that occurred here would be unthinkable—and

blatantly unconstitutional—in the physical world. It should be no different in this

case.

The warrants’ perpetual gag provisions are also unlawful and

unconstitutional. They violate the Stored Communications Act and the First

Amendment, neither of which allows such an open-ended ban on speech. By

preventing Facebook from ever telling its users what it was required to produce to

the Government, the gag provisions ensured that the affected people themselves

could not assert their constitutional rights to challenge a seizure that occurred in

the shadows, and that they did not even know had occurred.

The fact that all of the 381 warrants were based on a single, 93-page

affidavit—which devotes at most one-third of a page to each of the 381 warrants—

is a telling indicator that the warrants lack particularity. Even though the trial court

relied on the affidavit in ordering execution of the warrants—and even though the

court later unsealed the affidavit at the Government’s request—the Government to

this day refuses to show the affidavit to Facebook or to any of the targeted

users. In true Star Chamber style, the Government did not even provide a copy of

the affidavit to the Appellate Division as it was considering Facebook’s

appeal. Because the Government’s disability-fraud investigation has now

concluded, and there is no longer any need for secrecy, the only explanation for the

6

Government’s steadfast refusal to produce the affidavit is the obvious one: the

affidavit does not come remotely close to establishing probable cause for the large-

scale seizures that occurred in this case. This Court should order the Government

to produce the affidavit—the key document the trial court relied upon in ordering

execution of the warrants and a judicial record covered by the public’s right of

access to court documents.

This case presents important questions concerning the constitutional limits

on searches and seizures in the digital age—and the power of the judicial branch to

afford meaningful legal protections to the millions of New Yorkers who use

Facebook or other online services to share and store their personal

information. The importance of these issues is reflected in the widespread amicus

support for Facebook’s position in this case from businesses, technology

companies and civil liberties groups, including Google, Twitter, Yelp, Dropbox,

Pinterest, Microsoft, Foursquare, Kickstarter, Meetup and Vimeo, as well as the

New York Civil Liberties Union and the American Civil Liberties Union.

Under the Appellate Division’s ruling, the Government is endowed with

plenary power to seize the private digital information of thousands of people—and

only those few individuals who are criminally charged will ever have the

opportunity to contest the seizure. In the words of this Court: “To allow the

failure to prosecute . . . to serve as a shield for the allegedly illegal seizure and

7

retention of private property by government agents would be to make a mockery of

justice.” Matter of B.T. Prods. v. Barr, 44 N.Y.2d 226, 233 (1978). The Court

should not let that happen here.

QUESTIONS PRESENTED

1. Does Facebook have a right to challenge the bulk warrants, both in the

trial court and through an appeal?

The Appellate Division incorrectly answered “No.”

2. Do the bulk warrants violate the United States and New York

Constitutions, by authorizing the seizure and permanent retention of private

information that has no connection to the crimes under investigation?

The Appellate Division did not reach this issue.

3. Do the gag provisions in the bulk warrants violate the Stored

Communications Act and the United States and New York Constitutions, by

imposing a perpetual bar on Facebook’s speech that endures even after the

Government’s investigation has concluded?

The Appellate Division did not reach this issue.

4. Do Facebook and the public have a right of access to the investigator’s

affidavit—an unsealed document that the trial court relied upon in issuing the bulk

warrants—such that the trial court should have compelled its production?

The Appellate Division did not reach this issue.

8

STATEMENT OF JURISDICTION

CPLR § 5602(a)(1)(i) confers jurisdiction to hear this appeal because

Facebook’s motions to quash the search warrants and compel disclosure of the

investigator’s affidavit originated in Supreme Court, and the Appellate Division’s

Decision and Order finally determined the action. A.6-40. Facebook timely

moved this Court for leave to appeal on September 29, 2015. This Court granted

leave to appeal on December 16, 2015. A.3-4.

PRESERVATION OF ERROR

The Appellate Division rejected Facebook’s arguments that it could

challenge the bulk warrants in the trial court and on appeal. See Opening Br. of

Appellant Facebook, Inc. at 16-26, Index No. 30207/13, In re 381 Search Warrants

(1st Dep’t June 20, 2014); Reply Br. of Appellant Facebook, Inc. at 7-13, 20-22,

Index No. 30207/13, In re 381 Search Warrants (1st Dep’t Nov. 7, 2014); Reply

Br. of Appellant Facebook, Inc. at 5-11, Index No. 30178/14, In the Matter of the

Motion to Compel (1st Dep’t Nov. 7, 2014). The Appellate Division did not reach

Facebook’s arguments that the warrants and resulting searches and seizures are

unconstitutional, that the gag provisions in the warrants are unlawful and

unconstitutional, and that Facebook and the public have a right of access to the

investigator’s affidavit. See Opening Br. of Appellant Facebook, Inc. at 26-43,

Index No. 30207/13, In re 381 Search Warrants (1st Dep’t June 20, 2014); Reply

9

Br. of Appellant Facebook, Inc. at 22-30, Index No. 30207/13, In re 381 Search

Warrants (1st Dep’t Nov. 7, 2014); Opening Br. of Appellant Facebook, Inc. at 16-

26, Index No. 30178/14, In the Matter of the Motion to Compel (1st Dep’t Sept. 2,

2014); Reply Br. of Appellant Facebook, Inc. at 11-19, Index No. 30178/14, In the

Matter of the Motion to Compel (1st Dep’t Nov. 7, 2014).

STATEMENT OF FACTS

I. Facebook

Facebook is a popular online social networking service that has 1.5 billion

monthly active users. It is a free, Internet-based platform that allows people to

communicate, share information with friends and family, engage with issues and

groups, and express and develop their identities. Facebook, Newsroom, Company

Info, http://newsroom.fb.com/company-info. More than one billion people access

Facebook every day. Id. These people treat Facebook as a digital home where

they post photographs, videos, and communications, and they control the audience

with whom they share this information.

People who use Facebook begin by creating a profile page or Timeline that

typically includes the person’s name, photo, and biographical information.1 The

Timeline allows people to post photographs and other information from their

1 Timeline, Friend, Like, and other capitalized terms mentioned in this brief are explained on

the Facebook Help Center, http://www.facebook.com/help.

10

childhood to the present, enabling their friends or relatives to see their family

history and meaningful personal events in their life.

A profile typically identifies a wide variety of information about the person

and others. It lists other Facebook users whom the person has identified as a

Friend, along with a list of other Facebook Pages or things the person has Liked.

Those Pages and Likes run the gamut, from novels and celebrities, to political

candidates and social movements. The Timeline also allows people to identify the

places they have been by sharing their physical location on a virtual map. People

may also note the events they have attended, others who also attended those events,

and accompanying photographs or videos. And a person’s profile identifies the

Facebook Groups—online communities that can be organized around anything in

which people share an interest—to which the person belongs. The identities of

individual Group members are often known only to the members of the Group.

Using these tools, Facebook users “record all manner of life events,

opinions, affiliations, and other biographical and personal data.” A.11 (Slip Op. at

4). They convey their opinions, ideas, hopes, and fears, and display photos and

videos depicting vignettes about their lives. They also use Facebook to share

personal information with their friends and family. And they use Facebook as a

personal diary for privately recording their innermost thoughts and feelings. As

the Appellate Division acknowledged, “Facebook users share more intimate

11

personal information through their Facebook accounts than may be revealed

through rummaging about one’s home.” A.30 (Slip Op. at 23).

For example, a person’s Facebook account may reveal:

• The person’s age, gender, religion, race, location, nationality, socio-

economic status, ideology, education, employment, family members, friends,

favorite movies and television shows, reading lists, charitable and civic causes,

affiliations, fitness, sexual orientation, and relationship status;

• The person’s thoughts about: religion, politics, sex, aspirations,

accomplishment, hardship, public affairs, values, ethics, current events, fashion,

friends and family, coworkers, neighbors, public figures, social interactions,

lifestyle, intimate behavior, celebrations, grief, tragedy, infidelity, and joy;

• The person’s photographs and videos of: himself/herself, family,

friends, children, ultrasounds, medical issues, political events, food, pets, travel,

music, celebrations, art, humor, and entertainment;

• The person’s intimate diary entries, including details, reflections,

criticisms, and stories about the life of the user and others.

Facebook’s privacy settings give users control to “decide, through a wide

variety of options, with whom they wish to share information. Options may vary,

from the user who posts information publicly for every user to view, to the user

who restricts the number of users who may view his/her information.” A.11-12

12

(Slip Op. at 4-5). Some users choose to make some of their content public; others

limit information to all or some of their Friends; still others opt to create a private

electronic space by not allowing other users to see certain content at all. Users can

adjust their privacy designations at will, making some content widely available and

other content available only to a narrow audience.

II. The Bulk Warrants

On July 23, 2013, Supreme Court for New York County issued “381

substantially identical digital search warrants for Facebook accounts. The warrants

sought information in 24 separate categories, essentially comprising every posting

and action the 381 users identified had taken through Facebook.” A.12 (Slip Op. at

5); see A.41-44. Apart from the Facebook account identifiers, the warrants are

carbon copies, bereft of any differentiation. They contain virtually no date-range

limitations, no limitations on the content to be seized and examined by the

Government, and no procedures for the return of the seized information.

Each warrant “COMMAND[S]” Facebook to “retrieve, enter, examine,

copy, analyze, and to search the TARGET FACEBOOK ACCOUNT” for

information in categories encompassing:

• “Any and all subscriber and account information and user contact

information”;

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• The user’s “account status history . . . historical login information,

mini-feed, status update history, shares, notes, wall and timeline postings to the

target account, wall and timeline postings made by the target account to other

accounts, friend listing, including deleted or removed friends . . . networks,

group listing, future and past events, and video listing”;

• “[A]ll undeleted or saved photos”;

• “Any and all associated ‘Groups’ information, including a list of all

other users currently registered in any such groups”;

• All “private messages”;

• “All notes written and published to the account”; and

• “All chat history, including but not limited to, the content of all chats

and date and time information for all chats . . . .”

A.41-43 (emphases added).

The warrants state that there is “reasonable cause to believe” that the

property to be seized and searched “constitutes evidence and tends to demonstrate

that an offense was committed including, but not limited to” four crimes: “Grand

Larceny in the Second Degree in violation of Penal Law § 155.40; Grand Larceny

in the Third Degree in violation of Penal Law § 155.35; Offering a False

Instrument for Filing in the First Degree in violation of Penal Law § 175.35; and

Conspiring to commit such crimes in the County of New York and elsewhere.”

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A.43. The gravamen of these offenses is theft of property or defrauding a

Government official by filing a false statement. Yet the bulk warrants sought the

entirety of broad categories of information—every communication, every post,

every photograph, and every Group association—without limiting the request to

information that would tend to show such prohibited conduct.

The warrants also contain a provision prohibiting Facebook from ever

disclosing their existence to the targeted Facebook users: “[P]ursuant to 18 U.S.C.

§ 2703(b), this court orders Facebook not to notify or otherwise disclose the

existence or execution of this warrant/order to any associated user/account holder,

since such disclosure could cause individuals to flee, destroy evidence, or

otherwise interfere with an ongoing criminal investigation.” A.43-44. On its face,

the gag provision continues in force in perpetuity, regardless of whether there

remains an “ongoing criminal investigation.”

The probable cause ostensibly supporting all 381 warrants is set forth in a

single, 93-page affidavit from an investigator in the District Attorney’s office that

was initially filed under seal. A.12 (Slip Op. at 5).

III. The Trial Court Denies Facebook’s Motion To Quash.

Facebook received the bulk warrants on July 24, 2013. Upon seeing the

breadth of the demands, Facebook asked the Government to withdraw its request,

15

or at least permit Facebook to notify affected users so they could consider whether

to object. A.13 (Slip Op. at 6); A.46. The Government refused. Id.

Facebook moved to quash the warrants as overbroad and insufficiently

particular, and challenged the gag provisions. The trial court denied Facebook’s

motion, rejecting Facebook’s overbreadth, particularity, and gag-provision

challenges. A.35-37.

After the First Department denied a full stay pending appeal (A.151), and

after the Government threatened Facebook with criminal contempt, jail time, and

forcible execution of the warrants (A.48-51), Facebook complied with the warrants

while continuing to pursue its appeal (A.152).

IV. The Government Indicts A Small Fraction Of Targeted Facebook Users, And The Court Unseals The Investigator’s Affidavit.

In January and February 2014, while Facebook’s appeal was pending, the

Government charged 62 of the nearly 400 targeted Facebook users with engaging

in a scheme to fraudulently obtain disability benefits by falsely claiming to suffer

from a disability. A.12, 30 (Slip Op. at 5, 23 n.9). The Government said that it

would support its case with photographs obtained from Facebook that it said

showed some of the targeted users acting in ways inconsistent with their claimed

disabilities. See William K. Rashbaum and James C. McKinley, Jr., Charges for

106 in Huge Fraud Over Disability, The New York Times (Jan. 8, 2014).

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The trial court ordered the unsealing and disclosure of the search warrants

aimed at the 62 Facebook users named in the indictments, finding disclosure

“would be in the public interest.” A.154-58. At that time, the warrants relating to

the 319 non-indicted users remained sealed and subject to the gag order. Those

warrants were unsealed in June 2014, when the trial court unsealed all documents,

filings, and decisions related to this matter, including the supporting affidavit, and

permitted Facebook to “disclose the existence and execution of [all of the July 23,

2013 search warrants] to any associated user/account holder.” A.212. Facebook

immediately informed all targeted users about the warrants. Add.4; A.389.2

Although the trial court had unsealed the warrants and the investigator’s

affidavit, the Government refused to provide a copy of the affidavit to Facebook, to

the public, or to the criminal defendants. See Add.4. Facebook moved to compel

the Government to produce the affidavit, citing the public’s right of access to

judicial documents that provided the basis for a court’s decision. The trial court

denied that motion (A.38-40), and Facebook appealed from that order as well.

The Government has publicly stated that its investigation is now concluded.

See Br. for Resp’t at 31-32, 34, Index No. 30207/13, In re 381 Search Warrants 2 Numbers preceded by “A.” refer to pages in the Appendix. Numbers preceded by “Add.”

refer to pages in the Addendum. This Court may take judicial notice of the affirmations in the Addendum, which were filed in the Appellate Division in conjunction with motions by the Government to dismiss Facebook’s appeals. See Samuels v. Montefiore Med. Ctr., 49 A.D.3d 268, 268 (1st Dep’t 2008).

17

(1st Dep’t Oct. 2014). As a “matter of prosecutorial discretion, [the District

Attorney’s] Office has decided not to seek any further indictments in connection

with the disability fraud.” Add.9.

Of the 381 targeted Facebook users, only 62 were actually charged with any

crime, A.30 (Slip Op. at 23), and 319 people whose information was seized and

searched were never charged. Id. Most of the indicted individuals have pleaded

guilty, and the vast majority of those have been sentenced to probation, community

service, or conditional discharge. See Add.3; A.387-88.

V. The Appellate Division Dismisses Facebook’s Appeals.

On July 21, 2015, the Appellate Division dismissed Facebook’s appeals on

the theory that they were taken from “nonappealable” orders denying Facebook’s

motions to quash and compel. A.32. The Appellate Division held that “Supreme

Court’s summary denial of Facebook’s motion to quash the search warrants was

proper because there is no constitutional or statutory right to challenge an alleged

defective warrant before it is executed.” A.14. The court found that neither the

Fourth Amendment nor the New York Criminal Procedure Law, “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.” A.21.

The court recognized that the bulk warrants, issued under the Stored

Communications Act, differ from “traditional” search warrants in that they

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“require[] Facebook, rather than law enforcement agents, to be responsible for

‘seizing’ the materials by gathering the data and delivering it to the government.”

A.22. But the court believed this was “a distinction without a difference.” A.23.

The court emphasized that it was “cognizant that decisions involving the

Fourth Amendment have the power to affect the everyday lives of all U.S.

residents, not just criminal suspects and defendants.” A.30. It underscored that it

“appreciate[d] Facebook’s concerns about the scope of the bulk warrants issued

here” and recognized the ongoing injury inflicted by the “District Attorney’s

alleged right to indefinitely retain the seized accounts of the uncharged Facebook

users.” Id. And it acknowledged that “[j]udges, as guardians of our Constitution,

play an indispensable role in protecting the rights and liberties of individuals

entrenched in the Constitution.” Id. Nonetheless, the court deemed itself

powerless in this case because it believed that the trial court’s orders denying

Facebook’s motions to quash and compel were “nonappealable.” A.32.

ARGUMENT

The question before this Court is whether it will safeguard the constitutional

rights of New York citizens from the 21st-century version of the general warrant—

broad and secret data sweeps in which the Government seizes, studies, and keeps

indefinitely every aspect of a person’s digital life.

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What happened here violated the United States Constitution. It also violated

the New York Constitution, which this Court has “on many occasions interpreted

. . . to provide greater protections when circumstances warrant” in order to ensure

“the protection of the individual rights of our citizens.” People v. Weaver, 12

N.Y.3d 433, 445 (2009) (citations and quotation marks omitted). As it has so

many times in the past, this Court should refuse “to countenance an enormous

unsupervised intrusion by the police agencies of government upon personal

privacy and, in this modern age where criminal investigation will increasingly be

conducted by sophisticated technological means, the consequent marginalization of

the State Constitution and judiciary in matters crucial to safeguarding the privacy

of our citizens.” Id.

I. FACEBOOK HAS A RIGHT TO CHALLENGE THE BULK WARRANTS.

The Appellate Division held that Facebook has no right to challenge

warrants forcing it to collect and deliver vast amounts of its users’ private

information to the Government—and no right to challenge a perpetual gag order

prohibiting its speech. This is not and cannot be the law. Both the Stored

Communications Act and New York law entitled Facebook to move to quash the

warrants, and the trial court’s denial of that motion was an appealable order. By

dismissing Facebook’s appeal, the Appellate Division deprived hundreds of New

York citizens—never charged with any crime—of any meaningful way to redress

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the Government’s wrongful seizure and continued retention of their personal

information.

A. Both the Stored Communications Act and New York Law Allow Challenges to SCA Warrants.

In the digital age, law enforcement can capture large troves of private

communications, documents, photographs and videos more easily than ever before.

The Government’s ability to seize and examine information laying bare a citizen’s

private life and intimate thoughts and communications has never been greater.

While Congress and the courts have authorized law enforcement seizures of digital

information, they have also enacted strong protections against Government abuse

and overreach. One such protection is the right of the company maintaining the

digital information—like Facebook, Google, or Microsoft—to challenge

Government demands that it collect and turn over information in user accounts.

1. Facebook Has a Right to Challenge the Warrants Under the Stored Communications Act.

This case involves the Government’s seizure of digital information through

the use of warrants under the Stored Communications Act (“SCA”), 18 U.S.C.

§ 2703(a). SCA warrants are very different from traditional search warrants and

operate like subpoenas. Like a subpoena, and unlike a traditional search warrant,

an SCA warrant commands the recipient to search for certain types of electronic

records. See, e.g., A.43. The recipient bears the burden of determining where the

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records might be located, collecting potentially responsive materials, and then

producing them to the Government. See, e.g., In re: [REDACTED]@gmail.com,

62 F. Supp. 3d 1100, 1104 (N.D. Cal. 2014).

Whereas a traditional search warrant involves government agents themselves

conducting the search and seizure, an SCA warrant is served on the recipient like a

subpoena, and requires the recipient to conduct the search and gather materials for

the Government’s benefit. See U.S. Dep’t of Justice, Criminal Division, Computer

Crime and Intellectual Property Section, Searching and Seizing Computers and

Obtaining Electronic Evidence in Criminal Investigations 134 (2009), available at

http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf. An SCA

warrant “is executed like a subpoena in that it is served on the [service provider] in

possession of the information and does not involve government agents entering the

premises of the [service provider] to search its servers and seize the [user] account

in question.” In re Warrant to Search a Certain E-Mail Account Controlled &

Maintained by Microsoft Corp., 15 F. Supp. 3d 466, 471 (S.D.N.Y. 2014).

Unlike a traditional warrant—but just like a subpoena—an SCA warrant

need not be immediately executed by the entity conducting the search. See, e.g.,

United States v. Cioffi, 668 F. Supp. 2d 385, 389 (E.D.N.Y. 2009). And whereas a

traditional search warrant requires the Government to serve the warrant in person

at the location to be searched, an SCA warrant may be served by mail, email or fax

22

to the person or company holding the electronic records. See 18 U.S.C. § 2703(g);

United States v. Bach, 310 F.3d 1063, 1065 (8th Cir. 2002).3

Because the SCA requires companies like Facebook to help execute the

warrant by searching for, gathering and producing the information demanded,

Congress granted those companies the same right afforded recipients of a

subpoena—the right to move to quash or modify the demand. The SCA provides

that “[a] court issuing an order pursuant to [Section 2703], on a motion made

promptly by the service provider, may 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.” 18

U.S.C. § 2703(d). “This specific standing for the service provider to contest an

overly broad order is intended to protect the service provider from unduly

burdensome requirements and to permit an impartial judicial officer to evaluate the

appropriateness of the government’s request.” S. Rep. No. 99-541, at 39 (1986).

In this case, the trial court issued an “order” directing execution of the

warrants pursuant to Section 2703, and Facebook therefore had the right to move

to quash. The trial court expressly stated that the SCA empowered it to grant an

“order” compelling Facebook to produce the electronic records and that it had 3 Here, the Government chose to proceed under the SCA because (among other reasons) the

SCA allowed the Government to serve the warrants electronically on Facebook rather than travel to California to effect service in person.

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granted such an “order.” See A.33-34 (Slip Op. at 1-2) (explaining that “[t]he

Federal statutory language clearly and unequivocally grants a governmental entity

the authority to seek a court order to compel an electronic service provider, such as

Facebook, to disclose electronic information which they maintain,” and stating that

“[o]n July 23, 2013, this court ordered the execution of three-hundred eighty-one

search warrants . . . .”) (emphasis added); see also CPL § 690.05 (“A search

warrant is a court order and process directing a police officer to conduct” a search).

If there could be any doubt that the trial court issued an “order” within the

meaning of Section 2703(d), it would be eliminated by the court’s specific finding

that “[t]he District Attorney has followed all of the requisite procedures outlined in

18 USC § 2703(d) . . . with regard to obtaining a court order to search and seize

digital information stored by Facebook.” A.34. If the trial court did not issue an

“order” for purposes of Section 2703(d), this part of its opinion would make no

sense.

The Appellate Division’s conclusion—that Facebook has no right to move to

quash SCA warrants—rests on a misreading of the statute. The court agreed with

Facebook that Section 2703(d) “gives the [service provider] the right to object.”

A.28. But it erroneously concluded that this right “applies only to court orders or

subpoenas issued under subsections (b) or (c).” Id. Of course, that is not what the

statute actually says. It provides that “[a] court issuing an order pursuant to this

24

section, on a motion made promptly by the service provider, may quash or modify

such order . . . .” 18 U.S.C. § 2703(d) (emphasis added). The phrase “this section”

plainly refers to Section 2703, including subsection (a)’s warrant provision. The

Appellate Division’s construction effectively rewrites the statute by replacing the

words “this section” with the words “subsections (b) or (c) of this section.”

The Appellate Division’s ruling also conflicts with how other courts,

including the Southern District of New York, have interpreted the statute—as

authorizing motions to quash search warrants issued under Section 2703(a). For

example, in Microsoft, Magistrate Judge Francis and District Judge Preska each

recognized Microsoft’s right to move to quash SCA warrants. See 15 F. Supp. 3d

at 466, 471, aff’d, No. 13-mj-02814, ECF No. 80 (S.D.N.Y. Aug. 11, 2014). In

fact, the merits of the warrants are now being litigated before the Second Circuit,

and the United States Government is not disputing that a service provider has a

statutory right to move to quash an SCA warrant. Likewise, in In re Search of

Google Email Accounts, 99 F. Supp. 3d 992 (D. Alaska 2015), the court held that

18 U.S.C. § 2703(d) “authorizes a court, upon motion by a service provider . . . , to

modify the terms of a search warrant ex ante if compliance with the warrant would

be unduly burdensome.” Id. at 995 (emphasis added). The Government has never

identified a case, other than the ruling below, denying a service provider’s right to

move to quash an SCA warrant.

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2. Facebook Also Has a Right to Challenge the Warrants Under New York Law.

Facebook’s motion to quash was also authorized by New York law. This

Court has recognized that a third party may move to quash demands that it identify,

collect and produce documents. See, e.g., Abrams, 62 N.Y.2d at 192; see also

People v. Marin, 86 A.D.2d 40, 42 (2d Dep’t 1982).

Although there are good reasons why courts usually do not entertain motions

to quash traditional search warrants as a matter of New York law, those reasons do

not apply to SCA warrants. For one thing, there is far less urgency. A traditional

search warrant must be immediately executed and thus has “immediate and

unavoidable coercive power.” B.T. Prods., 44 N.Y.2d at 237. An SCA warrant, on

the other hand, typically allows ample time to comply (in this case, Facebook had

weeks to identify and collect the materials) and thus, like a subpoena, “provides an

opportunity” for the party served with it “to challenge it by a motion to quash prior

to submitting to the demand.” Id.

Another important difference is the active role played by the recipient in

gathering and producing the materials. An SCA warrant commandeers and

compels the recipient into assisting the Government with the seizure, whereas the

owner of property targeted by a traditional search warrant usually does nothing

more than step aside and watch the police conduct the search and box up materials.

An SCA warrant is far more intrusive on personal liberty because it compels the

26

recipient to take action—often extensive action, such as spending days or even

weeks identifying and collecting the information for the Government. It therefore

stands to reason that the recipient of an SCA warrant be given an opportunity to

challenge it in court before being conscripted into duty by law enforcement. Cf. In

re Directives to Yahoo! Inc., Pursuant to Section 105B of the Foreign Intelligence

Surveillance Act, 2008 WL 10632524, at *3 (FISA Ct. Rev. Aug. 22, 2008)

(finding Yahoo “faces an injury in the nature of the burden that it must shoulder to

facilitate the government’s surveillances of its customers”).

It simply cannot be the law that Facebook has no right to challenge a court

order compelling it to search for the personal information of hundreds of its users

and turn it over to the Government. Yet that is the undeniable consequence of the

Appellate Division’s ruling. Facebook is not a defendant and will never have the

opportunity to challenge the warrants through a motion to suppress, or on direct

appeal of a criminal conviction. That is why a motion to quash—as authorized by

the Stored Communications Act as well as under New York law—is the proper

way for Facebook to challenge the bulk warrants.

B. Facebook Has Standing to Defend the Constitutional Rights of Its Users.

There can be no dispute that Facebook has standing to challenge the

constitutionality of the warrants. The Stored Communications Act grants service

providers like Facebook the right to move to quash on grounds of “undue burden.”

27

18 U.S.C. § 2703(d). Thus, “[t]he question of standing to challenge” the bulk

warrants is “answered by the statute at issue, which [identifies] the class of persons

entitled to seek review.” Soc’y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77

N.Y.2d 761, 769 (1991). Facebook was forced to conduct a burdensome search of

hundreds of its users’ accounts and turn the information over to the Government,

or face contempt for sanctions. That burden is sufficient to establish Facebook’s

standing, just as a party forced to gather documents in response to a subpoena has

standing to challenge the subpoena. See Marin, 86 A.D.2d at 42. It also plainly

amounts to an “undue burden” for Facebook to be conscripted into carrying out a

search that violates the constitutional rights of hundreds of its users, who trust

Facebook to safeguard their personal information from unjustified governmental

seizures. See, e.g., In re Verizon Internet Servs., Inc., 257 F. Supp. 2d 244, 258

(D.D.C. 2003), rev’d on other grounds sub nom. Recording Indus. Ass’n of Am.,

Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003) (Internet

service provider has “a vested interest in vigorously protecting its subscribers’

[constitutional] rights, because a failure to do so could affect [its] ability to

maintain and broaden its client base”).

Facebook also has standing to challenge the gag provisions restricting its

speech. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Indeed, courts

have held that Section 2703(d) of the Stored Communications Act specifically

28

allows service providers to challenge a gag order issued in conjunction with an

order to produce information under Section 2703. See Matter of Grand Jury

Subpoena for: [Redacted]@yahoo.com, 79 F. Supp. 3d 1091, 1094 (N.D. Cal.

2015) (“Pursuant to Section 2703(d), [the provider] could of course request that the

[gag] order be lifted . . . .” (citation and quotation marks omitted)); Matter of

Application of United States of Am., 45 F. Supp. 3d 1, 6 (D.D.C. 2014) (same).

In addition to the rights expressly conferred by statute, Facebook may assert

the constitutional rights of its users under well-settled principles of third-party

standing. In fact, Facebook’s challenge is the only way the constitutional rights of

its more than 400 users whose information was seized could ever be vindicated.

The Government argued below that “any person aggrieved by any of these

searches will have ample opportunity to litigate the issues raised by Facebook . . .

during the subsequent criminal proceedings.” A.74. That claim has now been

exposed as false: the vast majority of persons whose accounts were seized had no

opportunity to challenge the Government’s actions. Only 62 of the nearly 400

Facebook users in question were ever charged, and no additional indictments will

be forthcoming. Add.9.

This Court is “reluctant to apply [standing] principles in an overly restrictive

manner where the result would be to completely shield a particular action from

judicial review.” Sierra Club v. Vill. of Painted Post, 26 N.Y.3d 301, 311 (2015)

29

(citation and quotation marks omitted). It should not do so here, particularly where

Facebook has third-party standing to pursue constitutional claims on behalf of its

users.

Courts consider three factors in determining whether a party may invoke

third-party standing: “(1) the presence of some substantial relationship between the

party asserting the claim and the rightholder, (2) the impossibility of the

rightholder asserting his own rights, and (3) the need to avoid a dilution of the

parties’ constitutional rights.” N.Y. Cnty. Lawyers’ Ass’n v. State of N.Y., 294

A.D.2d 69, 74-75 (1st Dep’t 2002) (citations and quotation marks omitted); accord

82 N.Y. Jur. 2d Parties § 13 (2016). Facebook satisfies all three requirements.

First, Facebook has a “substantial relationship” with its users, who trust it to

safeguard their personal information, and Facebook has a strong interest in

defending their rights. See Craig v. Boren, 429 U.S. 190, 193-97 (1976) (allowing

business to assert constitutional claim on behalf of customers); Verizon, 257 F.

Supp. 2d at 258 (allowing service provider to assert constitutional rights of its

users); see also NAACP v. Alabama, 357 U.S. 449, 459-60 (1958) (allowing

NAACP to assert constitutional rights of its members where there was a

“reasonable likelihood that the [NAACP] through diminished financial support and

membership may be adversely affected” by producing information about them).

30

Second, it is effectively impossible for the targeted users to vindicate their

own rights because they were kept in the dark by the gag order. See People v.

Kern, 149 A.D.2d 187, 233 (1989), aff’d, 75 N.Y.2d 638, 656 n.3 (1990) (holding

that the State has standing to assert a dismissed juror’s equal protection claim

because a juror excluded on the basis of race would be “unaware that he or she has

been discriminated against when he or she is dismissed”). In addition, the

substantial majority of the targeted users were never indicted, and almost all of

those who were indicted entered plea bargains. These individuals have no

meaningful remedy. See N.Y. Cnty. Lawyers’ Ass’n, 294 A.D.2d at 76 (focusing

not just on whether remedies are available, but whether they are effective). It is

inconceivable that the hundreds of targeted but non-indicted Facebook users could

all be expected to retain lawyers and file lawsuits against the Government

challenging the bulk warrants.

Third, denying Facebook’s standing to assert these third-party claims would

dilute the constitutional rights of its users—and the millions of others who use

social media—by leaving them with little protection from the type of

unconstrained data sweep that occurred in this case. Next time, the Government

could target thousands (or millions) of accounts. As the recipient of the warrant,

and the entity that actually conducts the search, Facebook is uniquely positioned to

help preserve privacy rights from unjustified governmental intrusions.

31

Many courts have recognized that online social networks and other

companies that possess individuals’ private digital information must be given the

right to challenge Government demands for that information, because the users

themselves cannot realistically do so. In McVicker v. King, 266 F.R.D. 92 (W.D.

Pa. 2010), for example, the court explained that the “trend among courts . . . is to

hold that entities such as newspapers, internet service providers, and website hosts

may, under the principle of [third-party] standing, assert the rights of their readers

and subscribers.” Id. at 95 (collecting cases). That trend continues as internet

service providers grow ever more integral to society. See, e.g., Trawinski v. Doe,

2015 WL 3476553, at *4 (N.J. Super. Ct. App. Div. June 3, 2015) (“online news

provider” could “assert the constitutional rights of its users”).

This is a critical issue for the millions of New Yorkers who use Facebook

and other online services—and whose constitutional rights would be jeopardized

by a denial of third-party standing in these circumstances. The consequence of

such a ruling would be to give law enforcement a green light to seize personal and

private information from millions of New Yorkers, secure in the knowledge that no

citizen would be able to challenge the seizure in court unless the Government

decided to indict that person. For the innocent, non-indicted users, there would be

no meaningful remedy for the violation of their constitutional rights. The need for

this Court to protect and defend the constitutional rights of the millions of New

32

Yorkers who have no way to do so themselves is why so many amici, including

many high-profile Internet companies and the New York and American Civil

Liberties Unions, have supported Facebook in this appeal.

Under the Appellate Division’s ruling, the Government can seize the private

digital information of thousands of people—and only those individuals who are

criminally charged will ever have the opportunity to contest the seizure. In the

words of this Court: “To allow the failure 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.” B.T. Prods., 44 N.Y.2d at 233.

C. The Trial Court’s Order Is Appealable.

The Appellate Division dismissed Facebook’s appeal on the ground that it

challenged a “nonappealable” order. A.32. But the trial court’s denial of

Facebook’s motion to quash is appealable under New York’s well-settled rule that

third parties may appeal denials of motions to quash—even in cases where the

requested documents are for use in a criminal proceeding.

In Matter of Abrams, arena box-office workers moved to quash an Attorney

General subpoena that was issued as part of a criminal investigation and sought

information implicating other arena employees in criminal conduct. 62 N.Y.2d at

188-90. This Court allowed the workers to appeal the Criminal Term’s denial of

their motion. The Court acknowledged the general rule that “direct appellate

33

review of orders issued in a criminal proceeding is not available absent statutory

authority.” Id. at 190 (citing Matter of Santangello v. People, 38 N.Y.2d 536, 538

(1976); Matter of Alphonso C., 38 N.Y.2d 923, 924-25 (1976)). But it held that “a

motion to quash subpoenas, even those issued pursuant to a criminal investigation,

is civil by nature and not subject to the rule restricting direct appellate review of

orders in criminal proceedings.” Id. at 192.

In reaching this conclusion, the Abrams Court relied on Matter of

Cunningham v. Nadjari, where the Court followed the “formidable line of

authority” that stretched back 40 years and allows the “direct appealability of

orders granting or denying motions to quash subpoenas in criminal investigations.”

39 N.Y.2d 314, 317 (1976) (per curiam). Abrams also cited Matter of Boikess v.

Aspland, where this Court held that the denial of a motion to quash subpoenas,

issued in furtherance of a criminal investigation, is a final and appealable order. 24

N.Y.2d 136, 138-39 (1969); see also Matter of Codey (Capital Cities, Am. Broad.

Corp.), 82 N.Y.2d 521, 526-27 (1993) (holding that while “authorized by a

provision of the Criminal Procedure Law,” an order regarding an application for a

subpoena to produce evidence for another state’s grand jury investigation was

“civil in nature” and therefore appealable); Matter of Hynes v. Karassik, 47 N.Y.2d

34

659, 661 & n.1 (1979) (“We hold the matter to be civil, for although it relates to a

criminal matter, it does not affect the criminal judgment itself.”).4

Although the Government has argued that Abrams is inapplicable because it

involves subpoenas rather than SCA warrants, that distinction fails because an

SCA warrant operates like a subpoena. An SCA warrant need not be served in

person, and it is the recipient that conducts the search, identifies the responsive

materials, and produces them to the Government. See 18 U.S.C. § 2703(g).

This Court has never limited Abrams to the subpoena context. Abrams

eschewed a label-based test and instead looked “to the nature of the proceeding and

the relief sought.” 62 N.Y.2d at 193. In Abrams, the Court found that proceedings

before the Criminal Term to quash subpoenas issued as part of a criminal

investigation were “properly characterized” as civil in nature, and therefore

appealable. Id. at 190. The Court reasoned that, even though “at some time in the

future the Attorney General may file criminal charges,” at the time of the motion to

quash “the only aspect of the subject proceeding that [was] criminal in nature [was]

4 See also People v. Cruz, 86 A.D.3d 782, 782 & n.2 (3d Dep’t 2011) (“[A] judgment that

denies a motion to quash a subpoena ‘issued by a criminal court during a criminal [proceeding] and addressed to an entity which is not a party to the criminal proceeding is appealable on the theory [that] such a determination constitutes a final judgment in a proceeding on the civil side of a court vested with civil jurisdiction.’” (citations omitted)); People v. Geoghegan, 76 A.D.2d 894, 895 (2d Dep’t 1980) (“[T]he order compelling appearance was in effect a subpoena. . . . Since the net result of an order denying a motion to quash is the same as that of an order compelling appearance, there is no rational reason for holding the former order appealable but the latter nonappealable.”).

35

the Attorney General’s investigation.” Id. at 193-94. The same is true here. The

Government directed Facebook to produce information as part of an ongoing

criminal investigation—in which Facebook was “not a target”—and the demand

was made “prior to any pending criminal proceeding.” A.13, 22 (Slip Op. at 6,

15); see, e.g., Codey, 82 N.Y.2d at 525-26 (party seeking to not provide evidence

for a criminal investigation was “accused of no crime or wrongdoing”). When

Facebook moved to quash, “there ha[d] been no criminal charges filed and no

arrests made in this case[,] and criminal prosecution ha[d] not even been threatened

with respect to particular” individuals. Abrams, 62 N.Y.2d at 193-94.

Lower courts have repeatedly relied on the Abrams line of cases in holding

that a third party may appeal orders directing it to produce documents for use in a

criminal proceeding when no other avenue for appellate relief will be available.

For example, in People v. Marin, the Second Department allowed a third-party law

firm to take an immediate appeal from the denial of its motion to quash a subpoena

duces tecum. 86 A.D.2d at 42. The court acknowledged the general rule that

denial of a motion to quash is not appealable by the parties to the criminal action

because “the propriety of such an order can be resolved on the direct appeal from

any resulting judgment of conviction.” Id. However, the Marin court explained,

that “avenue of relief is totally unavailable to [the third-party law firm], who is

clearly aggrieved by the [trial court’s] order.” Id. Therefore, the court found that

36

the order was appealable because “the denial of an appeal to the law firm at this

juncture would irrevocably preclude it from any opportunity to vindicate its

position before an appellate body.” Id.5

If the trial court’s order is held nonappealable, the constitutionality of the

warrants will be shielded from appellate review, as Facebook is not a defendant in

the criminal case. Because “adopt[ing] the rule urged by [the Government] . . .

would insulate decisions such as this from judicial review, a result clearly contrary

to the public interest,” Matter of Har Enters. v. Town of Brookhaven, 74 N.Y.2d

524, 529 (1989), this Court should flexibly interpret its power—as it has in many

other contexts, see, e.g., id.—and deem the trial court’s order appealable.6

5 Other courts have followed Marin’s reasoning. See, e.g., Matter of Cohen v. Demakos, 144

A.D.2d 605 (2d Dep’t 1988); People v. Johnson, 103 A.D.2d 754, 755 (2d Dep’t 1984). The First Department has likewise held that an order was appealable by a non-party that “would otherwise be precluded from vindicating its position before an appellate body.” People v. Purley, 297 A.D.2d 499, 501 (1st Dep’t 2002). As another First Department panel explained, where a third party “was not a party to the underlying criminal action”—and therefore could not take a direct appeal in that action—the third party “may properly appeal from the order denying” its motion to quash. People v. Bagley, 279 A.D.2d 426, 426 (1st Dep’t 2001) (citing Cunningham, 39 N.Y.2d at 314).

6 The Appellate Division did not view this case as moot. The dispute over the seized information remains live notwithstanding Facebook’s compliance with the warrants and the lifting of the gag order. First, rights remain to be adjudicated and remedies remain to be fashioned—if Facebook prevails in this appeal, the Government will be required to return the seized information and disclose the investigator’s affidavit. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992); Matter of Grand Jury Subpoenas, 72 N.Y.2d 307, 311-12 (1988). Second, the significant issues presented here are likely to recur. See Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596, 603 (1982); Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 436-37 (1979). Third, the Government’s “voluntary cessation of allegedly illegal conduct . . . does not make the case moot.” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979) (citation omitted); see also

(Cont'd on next page)

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II. THE BULK WARRANTS ARE UNCONSTITUTIONAL.

This Court should reject the bulk warrants for two distinct reasons. First,

they violate the Fourth Amendment because they lack particularity and are

unconstitutionally overbroad. They are the modern incarnation of general warrants

that sweep up vast amounts of information without limitation. Second, the

warrants’ perpetual gag provisions violate the Stored Communications Act, which

allows such provisions to be imposed only for a limited “period,” 18 U.S.C.

§ 2705(b), and operate as an impermissible prior restraint on Facebook’s speech in

violation of the First Amendment.7

A. The Bulk Warrants Violate the Fourth Amendment Because They Are Overbroad and Lack Sufficient Particularity.

1. The Fourth Amendment Applies With Strong Force in the Digital Age.

Under the Fourth Amendment to the United States Constitution:

(Cont'd from previous page)

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 173-74, 190 (2000).

7 The bulk warrants also violate Article I, Section 12 of the New York Constitution, which this Court has construed in some circumstances to provide even greater protections than the Fourth Amendment. See Weaver, 12 N.Y.3d at 445 (explaining that this Court has adopted heightened search-and-seizure protections “when doing so best promotes predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens” (citation and quotation marks omitted)). The Government’s “dragnet use” of social media here—prying into virtually every “detail[] of people’s daily lives” and keeping it secret indefinitely—was “not consistent with the values at the core of our State Constitution’s prohibition against unreasonable searches.” Id. at 446.

38

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fourth Amendment “safeguard[s] the privacy and

security of individuals against arbitrary invasions by government officials.”

Camara v. Mun. Court of S.F., 387 U.S. 523, 528 (1967).

Although applications of the Fourth Amendment evolve with new

technology, the principles that motivated its passage are timeless. “The chief evil

that prompted the framing and adoption of the Fourth Amendment was the

‘indiscriminate searches and seizures’ conducted by the British ‘under the

authority of general warrants.’” United States v. Galpin, 720 F.3d 436, 445 (2d

Cir. 2013) (quoting Payton v. New York, 445 U.S. 573, 583 (1980)); see also

People v. Brown, 96 N.Y.2d 80, 84 (2001). General warrants allowed “wide-

ranging exploratory searches,” Maryland v. Garrison, 480 U.S. 79, 84 (1987), and

gave the Government “unbridled discretion to rummage at will among a person’s

private effects,” Arizona v. Gant, 556 U.S. 332, 345 (2009).

As this Court has explained, the Fourth Amendment’s prohibitions on

overbreadth and lack of particularity are “designed to prohibit law enforcement

agents from undertaking a general exploratory search of a person’s belongings.”

Brown, 96 N.Y.2d at 84 (citation omitted). To “prevent general searches,” and to

39

ensure “that the search will be carefully tailored to its justifications,” the

particularity requirement “limit[s] the authorization to search to the specific areas

and things for which there is probable cause to search.” Garrison, 480 U.S. at 84.

“[A] failure to describe the items to be seized with as much particularity as the

circumstances reasonably allow offends the Fourth Amendment because there is no

assurance that the permitted invasion of a suspect’s privacy and property are no

more than absolutely necessary.” Galpin, 720 F.3d at 446 (citation and quotation

marks omitted). To satisfy the particularity requirement, the warrant must, among

other things, “specify the items to be seized by their relation to the designated

crimes.” Id. (citations and internal quotation marks omitted). And the description

of the things to be seized must be “confined in scope to particularly described

evidence relating to a specific crime for which there is demonstrated probable

cause.” In re Applications for Search Warrants for Information Associated with

Target Email Accounts/Skype Accounts, 2013 WL 4647554, at *5 (D. Kan. Aug.

27, 2013) (citation omitted).

The Fourth Amendment’s principles apply with particular force in the digital

age, where large amounts of private information can be captured in an instant.

Digital data can reveal, with “breathtaking quality and quantity,” a “highly detailed

profile, not simply of where we go, but by easy inference, of our associations—

political, religious, amicable and amorous, to name only a few—and of the pattern

40

of our professional and avocational pursuits.” Weaver, 12 N.Y.3d at 441-42;

accord United States v. Jones, 132 S. Ct. 945, 955-56 (2012) (Sotomayor, J.,

concurring) (a person’s digital information “reflects a wealth of detail about her

familial, political, professional, religious, and sexual associations”). As a result,

searches of a digital home “implicate privacy concerns far beyond those implicated

by the search” of a physical home. Riley, 134 S. Ct. at 2488-89.

The Second Circuit has emphasized that, in light of the “serious risk that

every warrant for electronic information will become, in effect, a general warrant,

rendering the Fourth Amendment irrelevant,” digital searches require a

“heightened sensitivity” to constitutional concerns. Galpin, 720 F.3d at 447

(citation and quotation marks omitted); accord Riley, 134 S. Ct. at 2489-90. State

courts have similarly warned that “[c]omputer search warrants are the closest

things to general warrants we have confronted in the history of the Republic.” In

re Appeal of Application for Search Warrant, 71 A.3d 1158, 1175 (Vt. 2012)

(citation omitted); see also, e.g., State v. Keodara, 2015 WL 8122464, at *4

(Wash. Ct. App. Nov. 2, 2015) (recognizing that a digital search “gives rise to

heightened particularity concerns”); State v. Bachman, 2015 WL 46547, at *4

(Minn. Ct. App. Jan. 5, 2015) (explaining that electronic searches increase “law

enforcement’s ability to conduct a wide-ranging search into a person’s private

affairs, and accordingly make the particularity requirement that much more

41

important” (citation omitted)); State v. Sprunger, 811 N.W.2d 235, 244 (Neb.

2012) (noting that modern technology “makes the particularity and probable cause

requirements all the more important”).

Those concerns are even more acute when electronic searches involve a

Facebook account, which often contains the digital equivalent of one’s home and

belongings—including personal information, communications, photographs,

videos, and more. See A.30 (Slip Op. at 23) (“Facebook users share more intimate

personal information through their Facebook accounts than may be revealed

through rummaging about one’s home”).

2. The Bulk Warrants Violate the Fourth Amendment.

The bulk warrants in this case authorize the very sort of general search the

Fourth Amendment forbids. They are constitutionally defective in many respects.

First, the bulk warrants violate the Fourth Amendment’s particularity

requirement because they “allow a search of all computer records without

description or limitation.” United States v. Rosa, 626 F.3d 56, 62 (2d Cir. 2010)

(citation omitted). “These bulk warrants demand[ ] ‘all’ communications in 24

broad categories from the 381 targeted accounts” (A.30 (Slip Op. at 23)), which

covered virtually anything the users had ever done on Facebook. For example, the

warrants demand “[a]ny and all subscriber and account information,” “all

undeleted or saved photos,” “[a]ny and all associated ‘Groups,’” “[a]ny public or

42

private messages,” “[a]ll notes,” and on and on. A.41-42. In short, the bulk

warrants use precisely the sort of “broad catch-all phrase[s]” that courts have

repeatedly held signal overbreadth and a fatal lack of particularity. United States v.

George, 975 F.2d 72, 75 (2d Cir. 1992). See, e.g., Brown, 96 N.Y.2d at 84-85

(finding unconstitutional a warrant to search for “any other property the possession

of which would be considered contraband” (emphasis added)).8

Second, the bulk warrants impermissibly require “wholesale seizures of

entire categories of items not generally evidence of criminal activity, and provide[]

no guidelines to distinguish items used lawfully from those the government had

probable cause to seize.” United States v. Embry, --- F. App’x ---, 2015 WL

5334191 (9th Cir. Sept. 15, 2015) (citation omitted). The bulk warrants demand

private information that cannot possibly have any relevance to the Government’s

disability-fraud investigation, such as the fact that someone may “Like” the New

York Mets or has professed love for his or her children. See A.41-43. Moreover,

the bulk warrants authorize the search and seizure of entire categories of this

irrelevant information—all information concerning a person’s Friends, Likes,

8 See also, e.g., United States v. Otero, 563 F.3d 1127, 1132-33 (10th Cir. 2009) (rejecting

warrant for “[a]ny and all” information, data, and other materials); In re Applications for Search Warrants for Information Associated with Target Email Address, 2012 WL 4383917, at *8 (D. Kan. Sept. 21, 2012) (denying demand to produce “all email” associated with an account and “all records and other information regarding the account,” because the demand was “too broad and too general.”).

43

Groups—not just the information that might possibly suggest wrongdoing. The

Fourth Amendment does not permit such unrestrained fishing expeditions. See,

e.g., People v. Nieves, 36 N.Y.2d 396, 404 (1975) (“Certainly there was no

justification for an inference that each and every occupant in each and every area

of the bar, the restaurant, the kitchen, the storage rooms and every other part of the

premises was likely to possess policy records or be a party to illegal gambling in

the premises.”); Keodara, 2015 WL 8122464, at *6 (rejecting warrant to search

“for items that had no association with any criminal activity and for which there

was no probable cause whatsoever. There was no limit on the topics of

information for which the police could search.”); United States v. Barthelman,

2013 WL 3946084, at *11 (D. Kan. July 31, 2013) (warrants were overbroad and

lacked particularity where they “allow[ed] the search of all emails, pictures,

friends, and groups”).

Third, the bulk warrants do not “link the items to be searched and seized to

the suspected criminal activity,” thus failing to provide “meaningful parameters on

an otherwise limitless search.” Rosa, 626 F.3d at 62. The warrants assert that

“there is reasonable cause to believe that the above-described property constitutes

evidence and tends to demonstrate that an offense was committed, including but

not limited to” grand larceny, offering a false instrument for filing, and conspiracy

to commit these crimes. See A.43. This “unadorned reference” to broad statutes

44

that can encompass a variety of offenses fails to “sufficiently limit the scope of

[the] search warrant.” United States v. Leary, 846 F.2d 592, 602 (10th Cir. 1988).

Moreover, the “[m]ere reference to ‘evidence’ of a violation of a broad criminal

statute or general criminal activity provides no readily ascertainable guidelines for

the executing officers as to what items to seize.” George, 975 F.2d at 76.

Fourth, the warrants do not contain a “temporal limitation on the items to be

searched.” United States v. Zemlyansky, 945 F. Supp. 2d 438, 459 (S.D.N.Y.

2013) (citation omitted). A “temporal limitation is an indic[ium] of particularity,”

and a “warrant’s failure to include a time limitation, where such limiting

information is available and the warrant is otherwise wide-ranging, may render it

insufficiently particular.” Id. (citations and quotation marks omitted). Here, the

only temporal limitation in the Government’s blanket demand for nearly

everything related to almost 400 Facebook accounts was a single date restriction

limiting the demand for IP logs to those for a three-and-a-half-year period. A.42.

That slight limitation on a single one of two dozen broad categories of demanded

information is plainly insufficient. See, e.g., In re Search of Google Email

Accounts Identified in Attachment A, 92 F. Supp. 3d 944, 953 (D. Alaska 2015)

(denying warrant to search emails without date restrictions); United States v. Winn,

79 F. Supp. 3d 904, 921 (S.D. Ill. 2015) (rejecting warrant that did not specify the

relevant time frame).

45

Finally, the bulk warrants are constitutionally defective because they do not

contain any provisions requiring the Government to return the vast amounts of

seized information that have nothing to do with the crimes being investigated. See,

e.g., In the Matter of the Search of Info. Associated with the Facebook Account

Identified by the Username Aaron.Alexis, 21 F. Supp. 3d 1, 9-10 (D.D.C. 2013). A

warrant—or a court order approving the warrant—must include provisions

prohibiting the Government from “collecting and keeping indefinitely information

to which it has no right.” Id.; see also In re: [REDACTED]@gmail.com, 62 F.

Supp. 3d at 1104 (denying warrant application and emphasizing that the

“government [has not] made any kind of commitment to return or destroy evidence

that is not relevant to its investigation”).9

Here, the Government was permitted to seize and permanently retain “all”

communications in 24 broad categories from the 381 targeted accounts, even

though only a small sliver of that information could possibly constitute evidence of

the crimes for which probable cause was found. The Facebook user information

9 Any detail contained in the investigator’s affidavit, which the Government still has yet to

disclose to the public (see infra Pt. III), and which is neither attached to the warrant nor incorporated by reference in it, cannot salvage the defective warrants. See Groh v. Ramirez, 540 U.S. 551, 557 (2004) (“The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.”). And even if this Court were to obtain and consider the affidavit, such a scant affidavit for 381 warrants (93 pages works out to one-third of a page at most for each warrant) is additional evidence of the lack of particularity.

46

searched and seized by the Government may not be held indefinitely by the District

Attorney’s Office. It must be returned to Facebook or destroyed.

B. The Gag Provisions Violate the Stored Communications Act and the First Amendment.

The gag provisions in the bulk warrants are unlawful and unconstitutional.

They “order[] Facebook not to notify or otherwise disclose the existence or

execution of this warrant/order to any associated user/account holder.” A.43-44.

They barred Facebook—in perpetuity—from ever disclosing the existence of the

warrants or publicly speaking about them.

1. The Gag Provisions Violate the Stored Communications Act.

The perpetual gag provisions are impermissible under the Stored

Communications Act. The SCA permits courts to bar a service provider from

disclosing an SCA warrant under certain specified circumstances “for such period

as the court deems appropriate.” 18 U.S.C. § 2705(b) (emphasis added). A

“period” is a unit of time with a beginning and end; it is not an open-ended,

limitless mandate. The plain language of the statute does not authorize perpetual

gag orders with no fixed end point.

In In the Matter of Search Warrant for: [Redacted]@hotmail.com, the court

rejected the Government’s request for an indefinite gag order in an SCA warrant

for precisely this reason. 74 F. Supp. 3d 1184 (N.D. Cal. 2014). As the court

47

explained, “[t]he problem [was] that the government [did] not seek to gag

Microsoft for a day, a month, a year, or some other fixed period. Having

persuaded the court that a gag order [was] warranted, it want[ed] Microsoft gagged

for . . . well, forever.” Id. at 1185. “Try as it might,” the court could not “square

this demand” with the statutory language authorizing the court to preclude notice

for “such period as the court deems appropriate.” Id. (quoting 18 U.S.C.

§ 2705(b)). This was because a “common sense view of ‘period’ in the statute

suggests some limit less than infinity.” Id. The same reasoning applies here.

2. The Gag Provisions Violate the First Amendment.

The gag provisions also violate the First Amendment because they are an

indefinite, content-based restriction on Facebook’s speech concerning a matter of

public interest and importance. See Reed v. Town of Gilbert, Ariz., 135 S. Ct.

2218, 2227 (2015) (“Government regulation of speech is content based” if it

“applies to particular speech because of the topic discussed or the idea or message

expressed.” (citations omitted)).

In In re Sealing and Non-Disclosure of Pen/Trap/2703(d) Orders, 562

F. Supp. 2d 876 (S.D. Tex. 2008), the court rejected the Government’s request for

an indefinite gag order under the SCA. As the court explained, “setting a fixed

expiration date” on such orders is required to satisfy “the First Amendment

prohibition against prior restraint of speech and the common law right of public

48

access to judicial records.” Id. at 878. The court observed that issuing gag orders

“without an expiration date raises troubling legal questions.” Id. at 880. “If the

recipients of [such] orders are forever enjoined from discussing them, the

individual targets may never learn that they have been subjected to such

surveillance, and this lack of information will inevitably stifle public debate about

the proper scope and extent of this important law enforcement tool.” Id. at 882.

Applying “rigorous scrutiny” to the gag order’s content-based restriction, id., the

court concluded that an “indefinite non-disclosure order is tantamount to a

permanent injunction of prior restraint” and was not “narrowly tailored to serve a

compelling governmental interest.” Id. at 886. It was therefore unconstitutional.

The court’s conclusion tracked the Supreme Court’s decision in Butterworth

v. Smith, 494 U.S. 624 (1990), which invalidated on First Amendment grounds a

Florida statute that prohibited disclosure of information after an investigation

ended. “When an investigation ends, there is no longer a need to keep information

from the targeted individual in order to prevent his escape—th[e] individual will

presumably have been exonerated, on the one hand, or arrested or otherwise

informed of the charges against him, on the other.” Id. at 632; see also, e.g.,

Matter of Grand Jury Subpoena for: [Redacted]@yahoo.com, 79 F. Supp. 3d at

1093-94 (citing Butterworth and rejecting a Government request that “Yahoo! [] be

gagged forever, unless the court were to take action to take the gag off”).

49

The same reasoning applies here. The indefinite gag provisions in the bulk

warrants violate the First Amendment.

III. THE GOVERNMENT HAS IMPROPERLY WITHHELD THE INVESTIGATOR’S AFFIDAVIT PURPORTEDLY JUSTIFYING THE BULK WARRANTS.

The Government’s refusal to produce the unsealed investigator’s affidavit

that purportedly justified the bulk warrants—and the trial court’s refusal to compel

the Government to produce it—violate the public’s right of access to judicial

documents. What happened here was remarkable. The District Attorney submitted

the affidavit to the trial court, and the court ordered the execution of the warrants

based on the affidavit. But when the court ordered the affidavit unsealed, the

public could not access it because the affidavit was not in the court file and the

District Attorney refused to produce it—even when the constitutionality of the

warrants was being litigated before the Appellate Division.

Under the New York and United States Constitutions and under common

law, the public has a right of access to judicial records and proceedings. See Globe

Newspaper, 457 U.S. at 603; Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597

(1978); Matter of Herald Co. v. Weisenberg, 59 N.Y.2d 378, 381 (1983)

(describing the “strong public policy in this State of public access to judicial and

administrative proceedings”). “New York’s presumption of public access is

broad,” Danco Labs. v. Chem. Works of Gedeon Richter, 274 A.D.2d 1, 7 (1st

50

Dep’t 2000) (citations omitted), as public access promotes fundamental interests of

openness, transparency, legitimacy, and integrity in the judicial process, see Press-

Enterprise Co. v. Superior Court, 464 U.S. 501, 508-09 (1984). The right of

access is “a general right held by all persons” and can be invoked, for example, by

“those who need a document ‘as evidence in a lawsuit,’” those “with ‘a proprietary

interest’ in a document,” those “who ‘desire to keep a watchful eye on the

workings of public agencies,’” and by those “seeking ‘to publish information

concerning the operation of government.’” United States v. Bus. of Custer

Battlefield Museum, 658 F.3d 1188, 1192 n.4 (9th Cir. 2011) (citations omitted).

The presumption of access applies here, because the investigator’s affidavit

is a judicial document. Public access rights extend to search warrant affidavits

because they are “relevant to the performance of the judicial function and useful in

the judicial process.” United States v. Amodeo, 44 F.3d 141, 145-46 (2d Cir.

1995); see also Custer Battlefield Museum, 658 F.3d at 1192-94 (joining “a

number of courts” in holding that the common law right of access applies to search

warrant materials once a criminal investigation is over); In re Sealing, 562 F. Supp.

2d at 892 (following the Second, Fourth, and Eighth Circuits in finding “a common

law right of public access to a search warrant application once the warrant had

been executed”). Because “[a]ffidavits in support of seizure or search warrants are

central to a court’s probable cause determination,” they “clearly fall within the

51

definition of ‘judicial documents.’” United States v. All Funds on Deposit at Wells

Fargo Bank, 643 F. Supp. 2d 577, 583 (S.D.N.Y. 2009).

Here, the Government submitted the investigator’s affidavit to the trial court.

See A.33, 41. Then, the trial court explicitly relied on that affidavit in making its

probable cause determination and in ordering execution of the warrants. A.36, 41.

That the trial court did not retain a copy of the affidavit, which currently resides in

the “prosecutor’s file” (see A.39), does not change the fact that the affidavit is

“relevant to the performance of the judicial function and useful in the judicial

process.” Amodeo, 44 F.3d at 145-46. And the “judicial determination [of]

whether to permit the government to enter and search private property qualifies . . .

as a determination of . . . substantive legal rights and of the government’s

investigative powers at the heart of the performance of judicial functions.” In re

Sealed Search Warrants Issued June 4 and 5, 2008, 2008 WL 5667021, at *3

(N.D.N.Y. July 14, 2008); see also All Funds, 643 F. Supp. 2d at 583-84.

Accordingly, the affidavit is a quintessential judicial document that must be

accorded the “maximum possible” presumption of access. In re Sealed Search

Warrants, 2008 WL 5667021, at *3.

The Government’s steadfast refusal to disclose the affidavit is particularly

inexcusable because the document is central to the parties’ dispute over the

constitutionality of the bulk warrants, an “issue[] of major public importance.”

52

Danco, 274 A.D. 2d at 8. “In reviewing the validity of a search warrant to

determine whether it was supported by probable cause or whether it contained a

sufficiently particular description of its target, the critical facts and circumstances

for the reviewing court are those which were made known to the issuing Magistrate

at the time the warrant application was determined.” Nieves, 36 N.Y.2d at 402

(citations omitted). The trial court relied on the affidavit in issuing and upholding

the bulk warrants that are the subject of Facebook’s constitutional challenge (A.33,

36, 41), but Facebook was not allowed to see the affidavit. On appeal, the

Government has continued to shield the affidavit from judicial scrutiny—failing

even to furnish it to the Appellate Division—while at the same time arguing that

Facebook’s challenge to the sufficiency of the affidavit is “conjecture.” See A.134.

This Court is not required to accept at face value the Government’s blithe

assurance that probable cause exists based on a document that the Government

continues to conceal. Like Facebook and the public, this Court has a right to see

the affidavit for itself.

There are no countervailing concerns against public access. The

Government has admitted that disclosure would be in the public interest; indeed,

that was the very argument the Government made in persuading the trial court to

unseal the affidavit. A.212. There is no need for continued secrecy now that the

Government’s investigation has ended. At a minimum, the affidavit could be

53

redacted rather than withheld in its entirety. See Danco, 274 A.D.2d at 8 (court

failed to “target precise areas” where redaction could occur); People v. Burton, 189

A.D.2d 532, 536 (3d Dep’t 1993) (if full disclosure is unwarranted, court must

“consider less drastic alternatives” like redaction).

Although it did not provide any analysis, the Appellate Division apparently

concluded that the denial of Facebook’s motion to compel disclosure of the

affidavit was a nonappealable order. A.32. That is incorrect. For the same

reasons that Facebook may appeal the denial of its motion to quash, Facebook may

appeal the denial of its motion to compel disclosure. See, e.g., Danco, 274 A.D.2d

at 2-3 (allowing appeal from civil proceedings denying public access to judicial

documents and proceedings); Associated Press v. Bell, 128 A.D.2d 59 (1st Dep’t

1987), aff’d, 70 N.Y.2d 32 (1987).10

The public has a right to view the affidavit that the trial court relied on in

deciding to order execution of the warrants—and that the Government itself

successfully moved to unseal. The Government’s steadfast refusal to produce the

document at the heart of this case is unjustified, inexcusable, and telling.

10 Matter of Newsday, Inc., 3 N.Y.3d 651 (2004) is not to the contrary. There, Newsday

applied to intervene in a criminal case to obtain access to judicial records in that criminal action. The Court emphasized, by contrast, that civil orders denying public access are immediately appealable, and that orders denying motions to quash in the context of a criminal investigation are civil and appealable. Id. at 651 & n.1.

CONCLUSION

The decision below sets New York on a dangerous course. It purports to

hand the Government overly broad authority to seize and retain large amounts of

deeply personal information, approves perpetual gag orders forever preventing

technology companies from telling their users what the Government has forced

them to do, and leaves New York citizens without recourse by insulating the

constitutional violations from meaningful judicial review. This Court should

reverse.

Dated: New York, New York February 16,2016

Of Counsel:

Orin Snyder Alexander H. Southwell Thomas H. Dupree, Jr. (admitted pro hac vice) Gabriel K. Gillett

Respectfully submitted,

/1

(} I ""/ /}

By: lJ'iL <o/'Qo(er GIBSON, DUNN & RUTCHER LLP

Attorneys for Appellant 200 Park A venue New York, New York 10166 Tel: (212) 351-2656 Fax: (212) 351-4035

54

ADDENDUM

ADDENDUM

TABLE OF CONTENTS Page

Affirmation of Alexander H. Southwell in Support of Facebook’s Opposition to the Government’s Motion to Dismiss Appeal No. 30207/13, without exhibits, dated August 18, 2014….......................................... 1

Affirmation of Bryan Serino in Support of the Government’s

Motion to Dismiss Appeal No. 30178/14, dated October 7, 2014…..................... 7

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT

IN RE 381 SEARCH WARRANTS DIRECTED TO FACEBOOK, INC. AND DATED JULY 23, 2013

Supreme Court Index No. 30207-13 AFFIRMATION OF ALEXANDER H. SOUTHWELL IN SUPPORT OF FACEBOOK’S OPPOSITION TO THE GOVERNMENT’S MOTION TO DISMISS

ALEXANDER H. SOUTHWELL, an attorney duly licensed to practice law

before the courts of the State of New York, affirms the following under penalty of

perjury.

1. I am a Partner at Gibson, Dunn & Crutcher LLP, and counsel for

Appellant Facebook, Inc. I make this affirmation in support of Facebook’s

opposition to the Government’s motion to dismiss.

2. Attached hereto as Exhibit A is a true and accurate copy of a redacted

version of one of the 381 search warrants issued by the Supreme Court, New York

County, Part 23 (Jackson, J.), directed at Facebook, and dated July 23, 2013. The

individual Facebook account named in this search warrant has been redacted for

public filing purposes.

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3. Attached hereto as Exhibit B is a true and accurate copy of the

decision and order of the Supreme Court, New York County, Part 23 (Jackson, J.),

entered on September 17, 2013.

4. Attached hereto as Exhibit C is a true and accurate copy of

Facebook’s notice of appeal, filed on September 20, 2013.

5. Attached hereto as Exhibit D is a true and accurate copy of the

affirmation of Mark Eckenwiler in support of Facebook’s application for a stay

pending appeal, dated September 22, 2013.

6. Attached hereto as Exhibit E is a true and accurate copy of the

Government’s memorandum of law in opposition to Facebook’s motion to stay,

dated September 2013.

7. Attached hereto as Exhibit F is a true and accurate copy of this

Court’s denial of a stay pending appeal, dated November 19, 2013.

8. Attached hereto as Exhibit G is a letter from Assistant District

Attorney Bryan Serino to the Honorable Justice Melissa C. Jackson, dated

December 4, 2013.

9. On January 6 and February 25, 2014, the District Attorney’s Office

charged 62 of the nearly 400 targeted Facebook users. On information and belief

and on information from the Clerk’s Office and the public docket, it is my

understanding that the District Attorney charged a total of 134 individuals; 62 of

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the 134 individuals charged were Facebook users targeted through the

Government’s 381 search warrants. More than half of those indicted have pleaded

guilty thus far. Many of those who have pleaded guilty have been sentenced to

probation, community service, and conditional discharge. More than 300 of the

targeted Facebook users were never charged.

10. Attached hereto as Exhibit H is a true and accurate copy of the

unsealing order of the Supreme Court, New York County, Part 65 (FitzGerald, J.),

dated January 6, 2014.

11. Attached hereto as Exhibit I is a true and accurate copy of the

unsealing order of the Supreme Court, New York County, Part 65 (FitzGerald, J.),

dated May 2, 2014.

12. Facebook perfected its appeal to the Appellate Division, First

Department, on June 20, 2014. Attached hereto as Exhibit J is a true and accurate

copy of Facebook’s opening brief to this Court, dated June 20, 2014. Facebook

also planned to simultaneously file a motion to unseal the matter but, upon the

Government’s indication that the case would soon be fully unsealed, Facebook did

not file an unsealing motion.

13. On June 23, 2014, three days after Facebook perfected its appeal, the

District Attorney’s Office requested that the trial court unseal the search warrants

and the investigator’s affidavit underlying the search warrants. The trial court

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granted the Government’s request that same day. Attached hereto as Exhibit K is

a true and accurate copy of the unsealing order of the Supreme Court, New York

County, Part 65 (FitzGerald, J.), dated June 23, 2014.

14. On June 25, 2014, ADA Serino emailed a copy of the trial court’s

unsealing order to counsel for Facebook. Facebook then promptly informed the

targeted users about the search warrants.

15. Despite the trial court’s unsealing order, the District Attorney’s Office

continues to maintain exclusive control over the unsealed investigator’s affidavit

and has refused to make a copy available to Facebook, the public, and the Court,

for no legitimate reason. On July 14, Facebook filed a motion to the trial court to

compel the Government to immediately disclose the investigator’s affidavit.

Attached hereto as Exhibit L is a true and accurate copy of Facebook’s

memorandum of law in support of its motion to compel, dated July 14, 2014.

16. On July 17, 2014, the District Attorney’s Office e-mailed the instant

motion to dismiss, dated July 15, 2014, to counsel for Facebook. The motion to

dismiss was filed on or about July 17, 2014.

17. Attached hereto as Exhibit M is a true and accurate copy of the

District Attorney’s opposition to Facebook’s motion to compel, dated July 2014.

18. On August 8, 2014, Dropbox Inc., Google Inc., LinkedIn Corporation,

Microsoft Corporation, Twitter, Inc., and Yelp Inc., Foursquare Labs, Inc.,

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Kickstarter, Inc., Meetup, Inc., and Tumblr, Inc., and the New York Civil Liberties

Union and the American Civil Liberties Union filed motions for leave to file

amicus curiae briefs in support of Facebook’s appeal.

19. Attached hereto as Exhibit N is a true and accurate copy of the notice

of motion by the New York Civil Liberties Union and the American Civil Liberties

Union for leave to file an amicus curiae brief and the affirmation of Mariko Hirose

in support of the motion, dated August 8, 2014.

20. Attached hereto as Exhibit O is a true and accurate copy of the notice

of motion by Dropbox Inc., Google Inc., LinkedIn Corporation, Microsoft

Corporation, Twitter, Inc., and Yelp Inc. for leave to file an amicus curiae brief

and the affirmation of Jeffrey D. Vanacore in support of the motion, dated August

8, 2014.

21. Attached hereto as Exhibit P is a true and accurate copy of the notice

of motion of Foursquare Labs, Inc., Kickstarter, Inc., Meetup, Inc., and Tumblr,

Inc. for leave to file an amicus curiae brief and the affirmation of Daniel M.

Sullivan in support of the motion, dated August 8, 2014.

22. Attached hereto as Exhibit Q is a true and accurate copy of

Facebook’s reply memorandum of law in support of its motion to compel, dated

August 11, 2014.

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23. Attached hereto as Exhibit R is a true and accurate copy of the order

of the Supreme Court, New York County, Part 65 (FitzGerald, J.), denying

Facebook's motion to compel, dated August 13, 2014.

Dated: New York, New York August 18, 2014

Respectfully submitted,

GIBSON, DUNN & CRUTCHER LLP

By: -~~~· · ~· ··"""""""'·. -----=:T"-!·~ii::::::::il-~=---7

6

Alexander H. Southwell asouthwell@gibsondunn. com 200 Park A venue New York, New York 10166 Telephone: (212) 351-4000 Fax: (212) 351-4035

Attorney for Facebook, Inc.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST DEPARTMENT

IN THE MATTER OF

THE MOTION TO COMPEL DISCLOSURE OF

THE SUPPORTING AFFIDAVIT RELATING TO

CERTAIN SEARCH WARRANTSDIRECTED TOFACEBOOK INC.

DATED JULY 23, 2013

BRYAN SE~~to, an attorney admitted to practice before the Courts of

this State, affirms under penalty of perjuxy that:

1. I am an Assistant District Attorney in the New York County District

Attorney's Office and am one of the attorneys handling the criminal investigation

and prosecution related to these search warrants.

2. I submit this affirmation in support of the People's motion to dismiss

this appeal on the ground that Justice FitzGerald's decision of August 13, 2014, is

not appealable and Facebook's appeal is unauthorized.

3. More than a year ago, on July 23, 2013, the Honorable Melissa C.

Jackson issued these search warrants. Rather dean comply, Facebook filed what it

called a motion to "quash." When Justice Jackson rejected Facebook's arguments,

it filed a notice of appeal and sought a stay pending appeal. On November 19,

2013, this Court denied the motion for a stay. At that point, Facebook finally

complied with the search warrants and provided electronic copies of the

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information listed in the warrants. Although Faccbook had represented that it was

prepared to file its appellate brief expeditiously, it did not perfect its appeal for

another seven months.

4. In the meantime, in January 2014, a New York County grand jury

charged 106 people with grand larceny and related charges in connection with a

massive long-term fraud against the Social Security disability system. Ind. No.

201/2014

5. Once that indictment was filed, the court below granted an unsealing

order unsealing 57 of the search warrants—those that related to the defendants who

had been charged.

6. In connection with that first unsealing order, I informed one of

Facebook's attorneys that the grand jury was still investigaring and that further

charges might follow. I also explained that, in order to preserve the secrecy of the

grand jury's work, it was necessary to keep the other search warrants under seal at

that time.

7. About a month later, in February 2014, the grand jury returned a

second set of indictments, charging an addirional 28 people with grand larceny and

related charges in connecrion with the Social Security fraud. More specifically, the

core group of four individuals who acted as masterrriinds of the scheme were

charged with conspiring, from 1988 through 2013, to steal more than $1 million

from the Social Security Administration by directing and assisting hundreds of

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applicants to create and submit fraudulent disability applications. The evidence

before the g-rand jury, in fact, shows that there were hundreds of fraudulent

applicarions and the loss to the public may well have exceeded X400 million.

8. Once this second wave of indictments had been filed, the court below

granted an additional unsealing order. Once I had obtained this unsealing order, I

spoke to Facebook's attorneys, in May and June 2014. I explained that the criminal

invesrigation was still active at that point, but that it would soon be possible to

notify all the remaining Facebook account-holders about the search warrants. I

made it clear that we would reach that point, and obtain the necessary unsealing

order, sometime this sluntner.

9. Shortly after my last conversation with Facebook's attorneys,

Facebook finally perfected its appeal of the search warrants—nearly nine months

after it filed its nonce of appeal. That appeal is pending and scheduled for the

December Term.

10. In connection with the schedule I had outlined for Facebook's

attorneys, I sought, and the court granted, an unsealing order on June 23, 2014. As

I had informed Facebook, that order allowed racebook to notify all the remaining

account-holders about the e~stence of the search warrants.

11. As of this point, as a matter of prosecutorial discretion, this Office

has decided not to seek any further indictments in connection with the disability

fraud, but instead has referred the cases of the remaining individual applicants to

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the Inspector General of the Social Security Administrarion for further

investigation. We anticipate that, in most of these cases, the agency will pursue civil

remedies against the applicants.

12. To assist the agency in recouping money that was fraudulently

obtained, we sought, and the court granted, an order pernzitring the material

obtained pursuant to these search warrants to be disclosed to the Inspector General

of the Social Security Administration. At the same time, all of the evidence

obtained—including that involving applicants who have not been ci7ininally

charged—will be relevant in the crinunal prosecutions of the core group of

conspirators, to prove the extent of the fraud they committed over the years.

Accordingly, it is still necessary for the People to retain this evidence for use at the

cruninal trial of the four core group conspirators.

13. As 'of this date, more than 90 individual applicants indicted in this

case have pleaded guilty. Of the 30 or so defendants who remain in the criminal

case, no Facebook account holders have yet filed a motion to controvert any of the

Facebook warrants. This is simply because few cases have proceeded to motion

practice. I expect the remaining cases to begin motion practice shortly, where the

affected individuals can address any issues they choose, including moving to

controvert search warrants.

14. In the meantime, in July 2014, Facebook filed a motion with Justice

Daniel P. FitzGerald, seeking disclosure of the affidavit submitted in connection

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with Justice Jackson's search warrants. On August 13, 2014, Justice FitzGerald

denied Facebook's motion and decided against disclosing the seaxch warrant

affidavit to a non-harry before the individual defendants had received a copy during

the normal discovery process.

WHEREFORE, and for the reasons set forth fully in the accompanying

Memorandum of Law, Facebook's appeal should be dismissed.

Bryan SerinoAssistant District Attorney

Dated: October 2014

S

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