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 … Because Facebook is a "service provider" as defined in the SCA and has alleged that the bulk warrants were unusually voluminous, and because the difference between conducting a targeted search and seizure instead of an overbroad one could make a material difference to the burden imposed on its business, the outcome of Facebook's resort to its federal statutory right to [*19]move to quash under Section 2703 (d) cannot properly be dismissed for lack of standing or denied on the merits even if sufficient probable cause existed to justify issuance of the warrants. Facebook has a federal right to appeal an adverse decision on its motion to quash. Had the District Attorney gone to federal court with his affidavit, as the SCA allows, the district court's ruling on Facebook's motion to quash would have been appealable to the U.S. Court of Appeals for the Second Circuit [FN12]. The federal Courts of Appeals generally have jurisdiction over appeals from all final decisions of the district courts (28 USC § 1291). State rules of procedure applicable to garden-variety warrants cannot be used as a device to contravene or frustrate federal law. b. Even Apart from the SCA, Federal Law Would Allow Facebook to Appeal the Denial of its Motion to Quash Even putting aside the statutory authorization granted to a service provider to move to quash an SCA warrant, and the concomitant right to appeal, federal law recognizes a fundamental difference between orders compelling a third party to produce information as part of an investigation, and orders compelling a third party to produce information once a criminal proceeding has commenced. Although subpoenas issued in connection with pending litigation or the grand jury process are not normally considered final (United States v Ryan, 402 US 530, 532-33 [1971]), and even nonparties to those proceedings who wish to obtain immediate appellate review of a subpoena must first defy the order, be held in contempt, and then appeal the contempt order (id. at 532), that rule is inapplicable to district court orders enforcing a subpoena issued by a government agency in connection with an investigation. Whereas the Ryan rule is designed to discourage (but not bar) appeals that would temporarily halt the litigation or grand jury process, here, "at least from the district court's perspective, the court's enforcement of an agency subpoena arises out of a proceeding that 'may be deemed self-contained, so far as the judiciary is concerned . . . there is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted were the offending [subpoenaed party] permitted to appeal'" (United States v Constr. Prod. Research, Inc., 73 F3d 464, 469 [2d Cir 1996], quotinq Cobbledick v United States, 309 US 323, 330 [1940]). https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 21/44