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 … Thecontention that an SCA warrant is not "civil by nature" because it commences a criminal proceeding under CPL 1.20 (18) and can be issued only to a governmental entity upon a showing of probable cause misses the point. The question is not whether the warrant itself was issued in a criminal proceeding, but whether the motion to quash gave rise -— as so often under Doe and its progeny -— to a civil proceeding, with its own index number, collateral to and discrete from the criminal one that birthed it. That is precisely what happened here. The District Attorney's argument that the text of the statute refers to Section 2703 (a) orders as warrants, and that the Second Circuit has found Congress intended them to be treated as warrants, is also unpersuasive. Although the Second Circuit is not required to adopt Abrams' anti-textualist approach, our longstanding practice requires we abjure simple heuristics and instead determine the true nature of the proceeding. Furthermore, the nature of the SCA bulk warrants was a close question for that court (see Matter of Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, —- F3d —-, [2d Cir 2017] [Jacobs, J., dissenting]; id. at ——- [Cabranes, J., dissenting]; id. at [Raggi, J., dissenting]; id. at ——- [Droney, J., dissenting]; see also In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp. [15 F Supp 3d at 471] [calling the order "a hybrid: [*24]part search warrant and part subpoena"]), and Judge Carney's majority opinion turned in significant part on her finding that the SCA's primary emphasis was on protecting user content (Microsoft, 829 F3d at 201, 205-206, 217-219, 222; Microsoft, —- F3d at —-). In Microsoft, the statute's purpose was served by finding Section 2703 (a) orders were issued like warrants for the purposes of extraterritorial application; here, it is served by recognized those orders are executed like subpoenas for the purposes of motions to quash. An unstated common practice behind our precedents supports Facebook's right to appeal. Although our series of short memoranda affirming or denying leave to appeal have not offered explicit and extensive guidance on how to determine whether an underlying proceeding is more criminal or civil in nature, a line of Appellate Division cases invoked by Facebook suggests the pivotal consideration is whether "the denial of an appeal . . . at this juncture would irrevocably preclude [a party] from any opportunity to vindicate its position before an appellate body" (People v Marin, 86 AD2d 40, 42 [3d Dept 1982]). Those cases create a dichotomy between (a) appeals where "either of the immediate parties to an underlying criminal action" can continue to contest "the propriety of an order on the direct appeal from any resulting judgment of conviction" and (b) appeals by innocent third parties who would have no other day in court (id.). A survey of the cases resolved by this Court suggests the rule ascribed to us by the Appellate Division not only squares with traditional https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 28/44