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 … depriving the company of a significant property interest, in this case its employees' time and the public's goodwill. In United States v New York Tel. Co. (434 US 159 [1977]), the Supreme Court examined the government's power to compel an earlier generation of analogous service providers —- the telephone companies —- to install pen registers and call tracing equipment. The Court held that the power to "impose duties upon third parties is not without limit; unreasonable burdens may not be imposed." Although the Court found no unreasonable burden had been imposed in that case, subsequent Third and Ninth Circuit decisions have held that the risk of an erroneous deprivation of property rights requires a hearing on the issue of burdensomeness before a telephone company can be compelled to cooperate in electronic surveillance, notwithstanding any delay to an investigation that would be caused by a hearing (In re Installation of a Pen Register or Touch—Tone Decoder and a Terminating Trap, 610 F2d 1148, 1156—1157 [3d Cir 1979]; United States v Mountain States Tel. & Tel. Co., 616 F2d 1122, 1132—1133 [9th Cir 1980]). Internet providers are entitled to at least the same degree of due process protection, which squares with the SCA's provision of a right to move to quash whether the order is a warrant or a subpoena. Footnote 11: The United States District Court for the Eastern District of New York, wrestling in a recent case with the substantively identical "unreasonable burden" language arising out of the New York Tel. Co. line of cases, identified a variety of unreasonable burdens that led it to deny the government's motion to compel Apple to unlock a suspect's iPhone (In re Apple, Inc., 149 F Supp 3d 341, 368-73 [ED NY 2016]; but see In re XXX, Inc., 2014 WL 5510865 [SD NY 2014]). The Eastern District's argument that "the category of unreasonable burdens is not nearly so narrow" as unreimbursed financial costs arising directly from the work and instead includes compelling a company to act in ways offensive to it or in ways that would tarnish its brand is given credence in this case by the Section 2706 requirement that government entities seeking information from service providers reimburse reasonable and necessary costs "directly incurred in searching for, assembling, reproducing, or otherwise providing such information." Because that requirement would limit the instances in which administrative costs were so unduly burdensome as to be cause to quash or modify a court order, the drafters must have contemplated a more expansive definition of an "undue burden." This is precisely the type of burden recognized by In re Apple's interpretation of the Supreme Court's holding in New York Tel. Co. (149 F Supp 3d at 368-373). Footnote 12: In Matter of Warrant to Search a Certain E—Mail Account Controlled & Maintained by Microsoft Corp. (829 F3d 197, 205 n 9 [2d Cir 2016]), the Second Circuit, by https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 39/44