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 … opinion affirms the lower court's ruling only insofar as the First Department dismissed the appeal as taken from a non-appealable order, the propriety of a motion to quash an SCA warrant in the first instance remains an open question in New York (majority op at __) —as does whether the Fourth Amendment, to say nothing of article 1, § 12, protects computer records against unreasonable searches and seizures. On the latter question, where the Appellate Division has already misled our trial courts (see People v Thompson, 51 Misc 3d 693, 710-14 [Sup Ct, New York County 2016], criticizing but applying the First Department's assertion that the Fourth Amendment is inapplicable to digital content), the Appellate Division's decision should be vacated or regarded as dicta, based on the majority's holding that the motion to quash was not appealable at all. Footnote 7: Hence, the majority's observation, citing several of our decisions, that "a fundamental precept of the jurisdiction of our appellate courts that '"[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute"'" (majority op at __) has no application here, because the "determination" of Facebook's motion to quash was not "made in a criminal proceeding" (and was authorized by a federal statute). It goes without saying that each of our precedents relied on by the majority concerns a state-law warrant, not a federal SCA warrant that grants a service provider a right to move to quash. Footnote 8: The SCA's original sponsor, Senator Patrick Leahy, continued to ascribe these three aims to the Act even while this case was being argued below (Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On the 27th Anniversary of the Enactment of the Electronic Communications Privacy Act, https://www.leahy.senate.gov/press/statement-of-senator-patrick-leahy-d-vt-chairmansenate-judiciary-committee_on-the-27th-anniversary-of-the-enactment—of-the-electroniccommunications-privacy-act- [accessed March 10, 2017]). The majority's description of the SCA as balancing privacy expectations and law enforcement needs (majority op. at __) obliterates Congress' third, and co-equal, concern. Footnote 9: A warrant is a type of order in the federal courts. Although New York law would not determine what Congress meant by "order" in this instance, "a search warrant is a court order" in New York (CPL 690.05). Footnote 10: Even were the final sentence of Section 2703 (d) construed to apply only to court orders for disclosure under subsection (b) or (c), the due process clause of the Fourteenth Amendment would entitle Facebook to a hearing prior to the entry of any order https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 38/44