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 Second Circuit has employed the same reasoning to allow the immediate appeal from
an order enforcing an arbitrator's subpoena (Dynegy Midstream Servs., LP c Trammochem,
451 F3d 89, 92-94 [2d Cir 2006] [allowing appeals from independent proceedings in which
"a party comes to federal court for the sole purpose of asking the court to issue an order"
and dismissing appeals from orders "embedded . . . in the midst of ongoing litigation in the
district court"]). Other circuits have allowed the appeal of independent proceedings
involving administrative search warrants (Babcock and Wilcox Co. v Marshall Eyeglasses,
610 F2d 1128 [3d Cir 1979]; United States v Stauffer Chemical Co., 684 F2d 1174 [6th Cir
1982]).
That conclusion, which tracks to a considerable extent our own jurisprudence allowing the
appealability of an order resolving a nonparty's motion to quash a subpoena issued prior to
the commencement of a criminal action, is further bolstered by the SCA's explicit support
for Facebook's right to move to quash an order. The Supreme Court has been reluctant to
close the doors of the Courts of Appeals to those whose appeal from compulsion rests on
statutory provisions (Cobbledick, 309 US at 329).
c. State Rules of Procedure Cannot Eliminate a Federal Right
The New York Criminal Procedure Law cannot and should not extinguish a service
provider's federal right to a fully adjudicated motion to quash, even if that motion is
pursued —- at the choice of the government —- in state courts. To hold otherwise is to
contravene both the language and the remedial and deterrent purposes of the SCA, which
here would deprive Facebook of its only avenue to challenge a potentially significant harm.
Although the SCA incorporates state rules governing the issuance of the bulk warrants (§
2703 [a]),[FN13] the warrants here are federal warrants issued pursuant to federal
statutory law -— not New York State law —- and no provision of the SCA adopts or
references state-law procedures for the appealability of SCA warrants. Nor does any portion
of the legislative history suggest that Congress intended to leave appealability of SCA
warrants to the vicissitudes of the appealability rules of the several states. It is implausible
that Congress, which carefully balanced Section 2703 (a)'s grant of power with Section
2703 (d)'s check on the same, intended to allow prosecutors to forum shop for the court
with the rules of procedure that would best evade the statutorily-granted quasi-Fourth
Amendment protections. When a service provider moves to quash under Section 2703 (d),
it has initiated a collateral, civil proceeding that gives rise toa final order subject to federal
rules of appeal. Even were that not so, the SCA would preempt CPL 450 when an SCA
warrant is involved, requiring us to apply the federal rules for [*20]interlocutory appeals in
https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html
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