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 … It accomplishes that balance by providing law enforcement officers with federal statutory authority to compel a third party (such as Facebook here) to execute a legitimate search and seizure, while simultaneously granting service providers a federal right to move to quash or modify problematic orders (§ 2703 [d]). The parties do not contend, and the majority does not hold, that the Section 2703 (d) right to move to quash or modify an order is available only to those providers served with court orders issued pursuant to Section 2703 (b) or (c), and not to those providers, like Facebook, served with warrants under Section 2703 (a). Although the opening sentences of Section 2703 [*18](d) contain specific provisions that relate only to court orders issued under subsections (b) and (c), the sentence that grants providers a statutory right to move to quash includes all court orders issued "pursuant to this section," i.e. pursuant to Section 2703 generally —- not only orders issued under subsections (b) or (c)[FN9]. The SCA plainly distinguishes between sections and subsections, and there is no indication that Congress intended for "sections" to be treated as "subsections." Indeed, to so hold would be to ignore the plain language of the SCA in contravention of the rules of statutory interpretation. Other courts presented with Section 2703 (d) motions to quash or modify Section 2703 (a) warrants have uniformly held that the statute authorizes a service provider's motion (see e.g., In re Search of Google Email Accounts, 99 F Supp 3d 992 [D Alaska 2015]; In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 15 F Supp 3d 466 [SD NY 2014]).[FN10] Service providers can invoke the protections of Section 2703 (d) if they have been compelled to disclose an unusual volume of their users' content or to comply with an order that would otherwise unduly burden them. As Facebook and amici argue, and as the Eastern District of New York concluded (In re Apple, Inc., 149 F Supp 3d 341, 368-73 [ED NY 2016]),[FN11] undue burdens are not limited to the direct administrative costs of compliance (for which the government must reimburse companies under Section 2706). Compelling a company to disclose the private information of its customers may tarnish its brand or alienate its current or future users, which could constitute an undue burden when evaluated against the scope of the request and its potential benefit to the prosecutor. As the Third Circuit noted in Pen Register, "[w]ithout a prior hearing, a district court is not likely to learn [that an] order is too burdensome until after the company has carried out the order. A prior hearing could have the further value of allowing the district court to restrict any excessively burdensome order sufficiently to make it valid" (610 F2d at 1157). https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 20/44