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 … to attack it; (2) so long as "no criminal action had been initiated against any identified party," challenges to the warrant need not be restricted to the forthcoming criminal prosecution; and (3) when the target of the warrant is not the target of the potential prosecution, that person will "have no adequate alternative remedy" other than a collateral challenge to the warrant, which cuts sharply in favor of entertaining the challenge to the warrant. Because the majority has interpreted our precedents to state an inflexible rule that does not, until now, exist, it should hardly be surprising that a "formidable line of authority" allows the direct appeal of orders granting or denying motions to quash subpoenas, even those issued in criminal investigations if prior to the commencement of a criminal action (Matter of Cunningham v Nadjari, 39 NY2d 314, 317 [1976]). Such motions, we have reasoned, are not made in a criminal proceeding. Rather, they are final orders in special proceedings on the civil side of a court vested with civil jurisdiction (id.). Those precedents are indistinguishable from Facebook's situation, unless one woodenly applies "warrant" and "subpoena." For example, in Matter of Abrams (62 NY2d 183 [1984]), we held that recipients of subpoenas issued by the Attorney General, in furtherance of a criminal ticket-scalping investigation, could move to quash the subpoenas, which decision was appealable, even though the employees themselves (unlike Facebook here) were the targets of the investigation. In Matter of Boikess v Aspland (24 NY2d 136 [1969]) we entertained the appeal of motions to quash subpoenas issued as part of a criminal investigation of marijuana use by Stony Brook professors. Again, the subpoena targets were themselves the potential criminal defendants, which is not the case here. In determining whether proceedings should be properly characterized as civil or criminal, this Court has eschewed a label-based test and instead consistently adhered to looking "to the true nature of the proceeding and to the relief sought" (Abrams, 62 NY2d at 191)[FN18]. The majority applies this test and concludes that the SCA bulk warrants operate more like traditional search warrants than like the subpoenas at issue in People v Doe (272 NY 453 [1936]) and its progeny. Here, the majority and I part ways. The SCA warrants operate more like subpoenas than like traditional search warrants in several significant, and determinative, respects [FN19]. First, rather than permitting state actors to [*22]seize property or private information directly, as traditional warrants do, the SCA warrants compel a third party (Facebook) to expend resources producing documents for an investigation. Second, unlike traditional warrants, service providers are not the targets of, or in any way involved in, the underlying investigation but are instead the neutral repositories of electronic information. Third, service providers must preserve https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 26/44