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 … hundred pages of the revised record of its proceedings, agreed that technological advances (whether the telegraph using radio waves, the telephone using copper wires or, by extension, the Facebook message using fiber-optic cable or a different frequency of the radio spectrum) are entitled to the same protections as their more ancient but analogous precursors (Revised Record at 340, 530).[FN3] They were also clear that New Yorkers retain a reasonable expectation that materials will remain private from the government even if they are divulged to their intended recipients, to third parties incident to the means of communication (such as a telegraph operator), or to a wide universe of friends and neighbors sharing a party line (Revised Record at 541, 558).[FN4] In fact, several prominent delegates thought searches and seizures of telecommunications should be subject to a higher standard of review than searches of physical property precisely because those searches were sure to compromise the privacy of other people. Those delegates quoted approvingly from Justice Brandeis' prescient dissent in Olmstead: "The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a [*17]telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping." (277 US at 475-476) The New York Constitution commands us to guard vigilantly against that evil. We have done so on many occasions by interpreting our own Constitution to provide greater protections than the Fourth Amendment when circumstances warrant (People v Weaver, 12 NY3d 433, 445-446 [2009], collecting cases). Here, we are asked to decide whether a federal statute, the U.S. Constitution, the New York Constitution, and the law of New York offer Facebook any meaningful recourse against a warrant authorizing the seizure of private information en masse. The facts are these: On the basis of a single 93-page affidavit (not subsequently shown to Facebook, or to its users whose files were seized, or to the Appellate Division, or to this Court), Supreme Court issued 381 warrants. Those bulk warrants authorized the seizure of what the District Attorney tepidly describes as "specified categories of information," but which functionally amounts to 381 users' entire histories on the platform. At least several of the users were https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 17/44