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 … citation to its prior decision in United States v Constr. Prod. Research, Inc. (73 F3d 464, 469 [2d Cir 1996]), suggested that a motion to quash an SCA warrant issued prior to the commencement of a criminal proceeding is, by analogy to an administrative subpoena, immediately appealable. The issue of the appealability of an SCA warrant was not presented in that case, because the parties stipulated to a stayed contempt order, which the district court entered, and Microsoft amended its notice of appeal in that regard. Footnote 13: The incorporation of New York state law governing the issuance of warrants means that the District Attorney may have needed to seek eavesdropping warrants, which he did not do, before "intercepting or accessing . . . an electronic communication" (CPL 750.05 [1]; see also CPL 250.00 [6]). Prior to obtaining an eavesdropping warrant, the District Attorney would have had to establish "that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ" (CPL 750.15 [4]). Lower court rulings that eavesdropping warrants are required only for messages in transit (see e.g., Gurevich v Gurevich, 24 Misc 3d 808, 811-813 [Sup Ct, Kings County 2009]) appear to have read the plain meaning of "accessing" out of the statute. However, Facebook did not raise that defect here, and I note it only in passing. Footnote 14: At least two other state courts of last resort have found that state courts must follow federal rules when state appellate review is necessary to protect a substantial federal right (Johnson v Fankell, 520 US 911, 914 [1997], collecting McLin v Trimble, 795 P2d 1035 [Oklahoma 1990] [finessing the matter by treating what was brought as an appeal as a reviewable original action, similar to Abrams' "special civil proceeding"] and City of Lakewood v Brace, 919 P2d 231 [Colorado 1996] [applying federal rules in state court]). Although Johnson declined to require a state court of last resort to adhere to federal rules concerning the appealability of orders denying qualified immunity, that decision rested on three factors absent here: (1) the defendants in that case could have their claims fully reviewed after the entry of final judgment, whereas Facebook can have no other day in court; (2) the consequence of applying the state's rules on interlocutory appeals deprived the state —- not the plaintiff -— of an advantage, so that no competition between federal and state interests was at issue (the competing interests in that case involved the state's judgement of how best to balance two state interests, viz. limiting interlocutory appeals and providing state officials with an immediate review of an adverse qualified immunity determination), whereas a federal statutory interest is manifestly present here; and (3) the Supreme Court was justifiably more reluctant to impose federal rules than state courts themselves need to be about importing those rules voluntarily (Johnson, 520 US at 919- https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 40/44