03/02/2020 In re 381 Search Warrants Directed to Facebook, Inc. :: 2017 :: New York Court of Appeals Decisions :: New York Case Law :: New York Law :: US … information pending the resolution of a motion to quash (§ 2703 [f]). As a result, SCA warrants can be challenged before compliance, and the results of that challenge can be appealed, without tipping off the subjects of the investigation or otherwise compromising the state's interest in the preservation of evidence. Fourth, our legal system is based on the adversarial process. Ex parte proceedings are a sharp departure from the norm, permissible only when required by exigent circumstances. Such circumstances, often present in the case of traditional warrants, are absent here. The District Attorney, who argued at Supreme Court that the notice provisions governing traditional search warrants under CPL 690.50 did not apply to SCA warrants because of the unusual manner in which those warrants were issued and executed, recognized that the 381 orders at issue here operated more like subpoenas than warrants in some respects [FN20]. Indeed, the fact that parallel provisions of the SCA contemplate allowing the government to subpoena, without notice to Facebook's customers, nearly all of the material it requested is fatal to the District Attorney's effort to distinguish the true nature of the two types of order (§ 2703 [b] [1] [B] [i]; § 2705; see Microsoft, 829 F3d at 227 [2d Cir 2016] [Lynch, J., concurring]. The execution of SCA warrants so closely resembles the execution of traditional subpoenas and civil document requests that no other aspects need to be considered [FN21]. [*23]Nevertheless, the prior cases and the parties suggest several other factors that bear on an Abrams-like inquiry into whether the underlying proceeding is more criminal than civil in nature. Those factors also tend to support the conclusion that Facebook has a right to appeal. Abrams itself focused on whether the contested motion could arise in the context of a purely civil suit and on whetherrelief sought had anything inherently to do with criminal substantive or procedural law (as well as on the uncertainty that criminal charges would ever be filed against particular respondents, discussed infra at n 22) (Abrams at 193-194). Because the SCA warrants are substantively identical to subpoenas, and because motions to quash subpoenas arise and are relieved in civil suits, Facebook satisfies Abrams' test. Although the relief Facebook seeks may include a review of a court's determination of probable cause, that review is not inherent in its motion to quash, which a court could grant because of a determination that the warrants injured Facebook's business interests in a manner that had nothing to do with criminal substantive or procedural law. Indeed, the issue properly before us on appeal is whether Facebook can appeal a determination that it lacked standing to move to quash the warrants. That jurisdictional determination has nothing to do with the criminal law and can be appealed and settled without reviewing issues of probable cause, causing substantial delay, or giving rise to interminable interlocutory appeals. https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 27/44