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Monday, February 24, 2020

N.Y. high court says it must dismiss Facebook appeals over user information

By Jessica Karmasek | May 19, 2017


ALBANY, N.Y. (Legal Newsline) - New York State’s highest court says it is forced to uphold a lower court’s order dismissing appeals filed by Facebook over user information sought in connection with a criminal investigation.

The New York Court of Appeals filed its decision in Facebook Inc. v. New York County District Attorney’s Office April 4. Judge Leslie E. Stein authored the ruling, which reviewed the appealability of two state Supreme Court orders.

The first order, Stein explained, denied Facebook Inc.’s motion to quash certain warrants, issued pursuant to the federal Stored Communications Act, which sought the account information and communications of various Facebook subscribers in connection with a criminal investigation.

The second order denied Facebook’s motion to compel disclosure of the affidavit supporting the warrant application.

“This case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizure, and the parameters of a federal statute establishing methods by which the government may obtain certain types of information,” Stein wrote in the 25-page opinion.

“Nevertheless, while it may be tempting for this Court to address those issues, we must -- in this case as in every other case -- first ascertain whether we possess the necessary jurisdiction to do so under our own constitution and statutes. This presents equally important issues regarding the separation of powers among our three branches of government.”

Because the orders resolving Facebook’s motions relate to warrants issued in a criminal proceeding -- and criminal procedure law does not authorize an appeal from either order -- Stein said the court is “constrained by law” to affirm a state Appellate Division order dismissing Facebook’s appeals.

In July 2013, a state Supreme Court issued 381 warrants directed at Facebook upon a warrant application by the New York County District Attorney’s Office.

The warrants sought subscriber information and content from numerous user accounts in connection with a pending criminal investigation into allegations of widespread Social Security Disability fraud involving the crimes of larceny and filing a false instrument.

The warrants prohibited Facebook from notifying its subscribers or otherwise disclosing the existence or execution of the warrants, in order to prevent interference.

Facebook moved to quash the warrants, arguing they were constitutionally defective because they were overbroad and lacked particularity; Facebook also challenged the nondisclosure component.

The Supreme Court denied the motion, holding Facebook lacked standing to assert any expectation of privacy or Fourth Amendment challenge on behalf of the individual account holders and that the warrants were supported by probable cause and were not unconstitutionally overbroad.

The court also rejected Facebook’s challenge to the nondisclosure clauses of the warrants, concluding disclosure of the warrants to the subscribers would risk jeopardizing the ongoing criminal investigation.

The court directed Facebook to immediately comply with the warrants.

Facebook appealed the Supreme Court’s order, and sought a stay pending resolution of its appeal.

After the state’s Appellate Division denied Facebook’s application for a stay, Facebook complied with the warrants and furnished the requested digital data.

While Facebook’s appeal was still pending, some of the targeted Facebook users were indicted for crimes stemming from the disability fraud investigation.

The warrants and the investigator’s supporting affidavit were eventually unsealed by orders of the Supreme Court, and Facebook was permitted to notify the targeted individuals of the existence of the warrants.

Despite the unsealing orders, the District Attorney’s Office refused to disclose the supporting affidavit to Facebook or the general public.

Facebook moved for an order compelling disclosure.

The District Attorney’s Office opposed the motion, arguing the unsealing orders did not render the affidavit available to the public and asserting the affidavit had not yet been provided to the targeted individuals who were being criminally prosecuted.

The Supreme Court denied Facebook’s motion to compel disclosure of the affidavit, and Facebook appealed that order as well.

In a single order, the Appellate Division dismissed both of Facebook’s appeals, concluding the orders denying Facebook’s motions were not appealable.

The state Court of Appeals granted Facebook’s leave to appeal and affirmed the Appellate Division’s order.

“While Facebook’s concerns, as a third party, about overbroad SCA warrants may not be baseless, we are mindful that there are counterbalancing concerns that militate against authorizing appellate review of warrants issued in connection with criminal prosecutions outside of the review that may be sought by a criminal defendant following conviction,” Stein wrote.

From Legal Newsline: Reach Jessica Karmasek by email at

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New York Court of Appeals