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 … Fourth Amendment implications. A challenge to criminal warrants, such as the one Facebook raised here,[FN5] will often seek review of a neutral magistrate's original determination of probable cause upon a sworn affidavit and compliance with the strictures of the Fourth Amendment. It can hardly be disputed that such relief is, quintessentially, of a criminal nature [FN6]. Accordingly, based on a review of the nature of the proceeding and the relief sought — not merely on strict adherence to the term "warrant," as the dissent claims — we conclude that the orders below related to criminal search warrants issued in connection with a criminal investigation and, therefore, the order denying Facebook's motion to quash is one made in a criminal proceeding (see Matter of Abrams, 62 NY2d at 191. Thus, the order is not appealable (see Matter of Police Benevolent Assn. of N.Y. State Police, 9 NY2d at 803-804; see also Matter of Alphonso C., 38 NY2d 923, 924 [1976]). Indeed, to hold otherwise would be to impermissibly and judicially [*9]create a right to appeal in a criminal matter that has not been authorized by our legislature (see NY Const, art VI, § 3 [b]; Hernandez, 98 NY2d at 10). IV. The dissent posits that Facebook must have a right to appeal in state courts, despite the absence of any statutory predicate under state law, on the ground that the SCA provides Facebook with a right to bring a motion to quash in the first instance and, thus, "normal federal rights of appeal apply" (dissenting op at 8). While we decline to opine on the propriety of a motion to quash a warrant under 18 USC § 2703 (d), suffice it to say that the dissent's argument, which is essentially a preemption argument,[FN7] relies on two flawed premises. First, the dissent inaccurately characterizes the SCA as authorizing a "freestanding cause of action" for providers to move to quash SCA warrants (dissenting op at 8). Second, the dissent concludes that an SCA "warrant" is equivalent to an "administrative subpoena," despite the clear and unmistakable distinction between the two intended by Congress, as reflected in the statutory language of the SCA. The SCA — which recognizes a variety of causes of action in connection with the release of electronic data that do not apply here (see 18 USC § 2707) — does not provide a third party with an independent cause of action under section 2703 (d) to challenge the issuance of either a warrant, subpoena, or court order. Rather, that section merely authorizes the provider to make a "motion" to a court that has already issued an "order" (id. § 2703 [d]); in other words, section 2703 (d) provides for a motion in an already-existing proceeding, not the commencement of a new and separate proceeding. Nor does the SCA provide a third party who makes a motion to quash with an express right to appeal the determination of such a motion. The federal courts of appeals have https://law.justia.com/cases/new-york/court-of-appeals/2017/16.html 9/44