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 … warrants. That statute confers both standing and a freestanding cause of action as to which normal federal rights of appeal apply. The majority construes my dissent as "rely[ing] on [the] flawed conclusion that an SCA 'warrant' is equivalent to an 'administrative subpoena,' despite the clear distinction between the two in the statute." That is not right. First, as explained in Section I (a), Section 2703 (d) concerns all "orders," so that the difference between a warrant and a subpoena is irrelevant to the statutory cause of action provided for by Congress. Second, even in Sections I (b) and I (c), in which I discuss appealability without regard to the statutorily-created cause of action, I do not conclude that SCA warrants and administrative subpoenas are always the same. Instead, under both federal and New York law, the appealability of warrants and subpoenas is not determined by their formal name, but by the circumstances under which they are issued — most importantly, whether there is a pending criminal action or merely an investigation. An appeal from the statutorily-granted motion to quash is not an appeal in a criminal proceeding,[FN7] but in a separate proceeding authorized by statute. The grant or denial of the motion to quash is a final decision, not an interlocutory decision in a criminal proceeding, and is appealable as of right by either party. Because they have mistakenly assumed that the federal statute's incorporation of state-law procedures for issuing warrants converts the federal statutory action into a traditional state-law warrant, and then applied the "warrant" label without regard to the circumstances present, the majority and the Appellate Division have characterized this appeal as taken from a non-appealable order. Very simply, because Congress granted service providers a statutory right to move to quash, it automatically provided standing and a right to appeal, absent a clear statement to the contrary. a. The SCA Provides Facebook With the Right to Bring a Separate Action to Move to Quash, Including the Right to Appeal. Both parties to this action agree the bulk warrants served on Facebook were issued pursuant to Section 2703 (a) of the SCA. The SCA provides statutorily-based quasi-Fourth Amendment protections to information sent to electronic communications and remote computing services. The Act, which also sets out procedures through which a governmental entity may compel such a service to disclose that information, was designed to "protect legitimate law enforcement needs while minimizing intrusions on the privacy of system users as well as the business needs of electronic communications system providers" (132 Cong. Rec. S7987-04 [emphasis added]).[FN8] https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 19/44