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 … highly sensitive and personal information, made easily accessible with a keystroke, when the request is unusually voluminous or would cause an undue burden on the provider (see dissenting op at 10, quoting 132 Cong. Rec. S7987-04). The majority's reliance on United States v Ryan (402 US 530 [1971]) and a line of cases concerning the finality of various orders under 28 USC § 1291 is misplaced as here federal jurisdiction is not at issue and the order is a final ruling on Facebook's motion under section 2703 (d) (majority op at 18). Regardless, the rule cited by the majority is not hard and fast. The United States Supreme Court has recognized exceptions for a "limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims" (Ryan, 402 US at 533)[FN2]. There is as good a reason, if not a more compelling basis, to recognize an exception to the rule requiring that the challenger raise the lawfulness of the order in a contempt proceeding — if such a rule applied to section 2703 (d) — given the nature of information sought in an SCA warrant. A service provider may rightly fear being held in contempt and forego challenging the warrant as the stigma associated with a contempt finding jeopardizes the service provider's stability and business position. These concerns present a calculus for the provider, and combined with the inherent coerciveness of the choice that risks a finding of contempt, weigh in favor of disclosure. While any challenger faces similar concerns, not every challenger has access to the sheer volume of intimate interpersonal information held by Facebook and other service providers. There is simply no basis to hold fast to a paradigm that encourages disclosure without addressing the unique circumstances presented when government [*15]demands the cache of information stored by service providers.[FN3] Although I agree with the dissent that Facebook could move to quash on the grounds set forth in section 2703 (d) and that the SCA permits an appeal from an adverse determination of such motion, because Facebook did not assert in the first instance that the information or records requested were unusually voluminous, that compliance would cause an undue burden, or that its business, reputational, or property interests were endangered by the warrant, I agree with the majority that the Appellate Division should be affirmed. Facebook asserted the rights of its users grounding its challenge on claims that the warrants are constitutionally infirm because "(1) the searches they authorize are overbroad, and (2) the warrants lack particularity." The SCA does not contemplate a service provider's motion to quash to protect its users' rights. Those rights are protected by the Fourth Amendment, CPL 690, CPL 710, and 42 USC § 1983 (see majority op at 22-23). Therefore, Facebook did not assert a basis for relief within the purview of section 2703 (d). https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 15/44