There Is No Legal or Constitutional Authority for a Pre-Execution Challenge to a Search Warrant—Facebook’s Attempt to Quash Search Warrants Seeking All the Information in 381 Subscribers’ Facebook Accounts Was Rejected

The First Department, in an extensive, full-fledged opinion by Justice Renwick, determined there was no statutory or constitutional authority for Facebook’s motion to quash 381 search warrants which sought all the data from the targets’ Facebook accounts and prohibited disclosure of the warrants to the targets. There is no authority allowing a pre-execution challenge to a search warrant. Facebook’s argument that their motion was analogous to a motion to quash a subpoena, the denial of which can be appealed, was rejected. Facebook’s argument that the bulk warrants were akin to subpoenas issued to Internet Service Providers, which can be challenged under the Federal Stored Communications Act (SCA), was rejected (after a full analysis):

We agree with Facebook that the bulk warrants at issue here are analogous to SCA section 2703(a) warrants to the extent they authorized the federal and state government to procure a warrant requiring a provider of electronic communication service to disclose electronic content in the provider’s electronic storage. However, contrary to Facebook’s allegations, 2703 subsection (d), which gives the ISP the right to object, applies only to court orders or subpoenas issued under subsections (b) or (c). The SCA specifically distinguishes these disclosure devices from warrants, which are governed by its subsection (a). While an order or subpoena obtained pursuant to (b) or (c) requires only that the government show “specific and articulable facts” that there are “reasonable grounds to believe” the information sought will be “relevant and material,” a warrant under subsection (a) requires the government to make the traditional and more stringent showing of “probable cause.” Here, a finding of probable cause was made by the reviewing judge, and thus the warrants are akin to SCA warrants, not SCA subpoenas or orders. Thus, Facebook’s argument that it has the right to contest the warrants based upon the SCA is contradicted by the express terms of the SCA. * * *

Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the District Attorney’s alleged right to indefinitely retain the seized accounts of the uncharged Facebook users. Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home. These bulk warrants demanded “all” communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime.

Judges, as guardians of our Constitution, play an indispensable role in protecting the rights and liberties of individuals entrenched in the Constitution. Charged with the indispensable responsibility of reviewing warrant applications, they protect the rights and interests of individuals by remaining mindful of the reasonableness embedded in the Fourth Amendment’s delicate balance. The procedural rules attendant to the Fourth Amendment’s warrant requirement both reasonably protect the innocent and permit investigation of suspected criminal conduct. A judge reviewing a warrant request must always balance the nature and quality of the intrusion on an individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Further, this balance invokes carefully weighing the extent to which each level of intrusion in the execution of the warrant is needed. Each level of intrusion involves an implicit assertion by the government that the intrusion is “reasonable” to recover the evidence described in the warrant despite the compromise of the individual’s interests in privacy. Ultimately, to be fair and effective, the overall assessment of reasonableness requires the judge reviewing the warrant to carefully evaluate the need for each additional level of intrusion in the process of seizing evidence. 381 Search Warrants Directed to Facebook, Inc. v New York County Dist. Attorney’s Off., 2015 NY Slip Op 06201, 1st Dept 7-21-15