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 … The case at bar is even worse than contemplated in B.T. Prods. Although some of the 319 users whose accounts were seized but who were never charged no doubt owe their relief to prosecutorial discretion, a number of the users —- such as the high school students —could not themselves have been suspected of engaging in disabilities fraud and could thus never have had an opportunity to challenge the seizures in a criminal court. It is wholly unrealistic to suggest that those high school students and other persons targeted by the dragnet, not because they were suspected of disability fraud but because they knew someone who was, should vindicate their rights by filing civil suits against the government under Section 2707 or 42 USC § 1983. The delegates to the 1938 constitutional convention, who debated the practicalities of civil suits at some length, were adamant that this suggestion "may appeal to a jurist cloistered in his chambers, but let the average citizen try it!" (Revised Record at 362). The delegates recognized that "the excuse of the officer's zeal in the performance of what he would describe as a public duty" (id.) and the expense of challenging a defendant with the "financial resources of the city back of him" (id. at 459) would make "these remedies in any concrete instance . . . ineffective" (id. at 529) and so impractical as to be "unreal" (id. at 519) or "absurd" (id. at 364)[FN26]. The prospect of civil suits to vindicate unlawful searches and seizures [*29]was offered as a reason against adding article 1, § 12, to the New York Constitution. Roundly rejecting that position, the delegates, and later the People, adopted not just the language of the Fourth Amendment verbatim, but added to it the language specifically sanctifying electronic communications transmitted via a third party. Even stipulating that each user would, despite the initial indefinite gag order, be told at some point of the seizure, the mere formal possibility of a civil suit does not foreclose Facebook from asserting third-party standing as the litigant best placed to vindicate its users' rights in practice, before a violation of any rights has occurred, by way of the adversarial system on which our rule of law rests. IV. Conclusion Under the majority's decision, this Court is powerless to protect the business interests of a major company; return information seized from either the 381 individuals, many of whom were never suspected of wrongdoing, or the thousands of innocent individuals who communicated or simply happened to share an interest with a user named in the bulk warrants; prevent a patchwork of opposing jurisprudence on an emerging federal and constitutional issue from creeping across the state; and vindicate the rights granted to New Yorkers in article I, § 12. Although seizing social media content to help curtail widespread disabilities fraud may seem to some a good bargain, the delegates of 1938, with their eyes https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 32/44