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 … ***************** Order affirmed, without costs. Opinion by Judge Stein. Chief Judge DiFiore and Judges Abdus-Salaam and Fahey concur. Judge Rivera concurs in result in a separate concurring opinion. Judge Wilson dissents in an opinion. Judge Garcia took no part. Decided April 4, 2017 Footnotes Footnote 1: An "electronic communication service" is "any service which provides to users thereof the ability to send or receive wire or electronic communications" (18 USC § 2510 [15]; see 18 § USC 2711 [1]), whereas a "remote computing service" provides "to the public . . . computer storage or processing services by means of an electronic communications system" (id. § 2711 [2]). Footnote 2: Notice to the subscriber may be delayed in accordance with 18 USC § 2705. Footnote 3: The appealability of an order resolving a non-party's motion to quash a subpoena issued after the commencement of a criminal action and the propriety of the Appellate Division cases relied on by the dissent (see e.g. People v Marin, 86 AD2d 40, 42 [2d Dept 1982]), of which we have never approved (see People v Santos, 64 NY2d 702, 704 [1984]), are not before us on this appeal. Footnote 4: The dissent incorrectly asserts that our holdings in these cases undermine our reasoning in the instant matter. In Cayuga Indian Nation of New York v Gould, we held that a declaratory judgment action may be entertained, in the court's discretion and prior to the commencement of a criminal action, where the constitutionality or legality of a statute or regulation is in question and no questions of fact are involved (14 NY3d 614, 634 [2010]). Notably, however, we did not review that part of the order below dismissing the declaratory judgment action insofar as it challenged a search warrant (see id. at 632 n 7), and Facebook's challenge to the search warrants here would not fall within the rule articulated in that case allowing for a declaratory judgment. Moreover, while the dissent quotes at length from a passage in Cayuga that the dissent claims directly contradicts our holding, our discussion of Kelly's Rental v City of New York (44 NY2d 700 [1978]) in Cayuga merely clarified that the issuance of a search warrant does not commence a criminal action or prosecution (which is commenced by the filing of an accusatory instrument), but it does commence a criminal proceeding; this principle is entirely consistent with our holding https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 34/44