Back in 2014, I wrote a long post on an issue raised by a pending case in New York state court: If the government serves a search warrant on an Internet provider for customer messages, and the Internet provider believes that the warrant violates the Fourth Amendment, can the provider go into court and litigate the constitutionality of the warrant before complying with it? New York’s state high court, the New York Court of Appeals, is going to hear argument in the case tomorrow. I thought I would blog more about the case to say why I think the provider in the case, Facebook, has a good argument that it has not made.

I. An Overview

In the case, Facebook makes two main arguments. First, Facebook argues that it has a statutory right to bring pre-enforcement challenges to Stored Communications Act warrants. Second, Facebook argues that it has third-party standing to assert Fourth Amendment rights on behalf of its users. As I explained in this long post, I don’t think either of Facebook’s arguments works. The Stored Communications Act does not give that statutory right to providers, I explained, and the users themselves have no Fourth Amendment right to a pre-enforcement challenge even if third-party standing exists. The Appellate Division largely agreed with my analysis in rejecting Facebook’s challenge, ruling for the government in the case — although not with the best analysis, for reasons I explained here.

The case is now before the New York Court of Appeals, the state high court, and the arguments there largely replay the arguments below. (You can get most of the briefs in the case here by searching for party name “Facebook.”) I stand by my 2014 post as they relate to the arguments Facebook has made. For those interested in the details, check out that earlier post.

But with that said, I have come to think Facebook has a good argument it didn’t make: Facebook should have argued that it has a procedural due process right to object to the warrant.

II. The Missing Due Process Argument

Here’s my thinking. Instead of arguing that Facebook has a right to bring a pre-enforcement challenge to a warrant — something pretty much unheard of — Facebook should have argued that it cannot be forced under the due process clause to comply with any court order without a hearing into the order’s legality. The argument isn’t a direct challenge to the warrant. Warrants are court orders authorizing government action. They allow the government to search the place to be searched for the items described, allowing “a properly commissioned officer” to execute the warrant “to further the government’s purposes.” Buonocore v. Harris, 65 F.3d 347, 356 (4th Cir. 1995). That’s not something that Facebook can directly challenge.

Instead, I think the better strategy would have been to challenge the state’s effort to make Facebook be legally required to assist with the warrant. Facebook should have said in effect, Hey, if you want to come from New York and execute the warrant in California yourselves, that’s your call, if you can find the legal authority to do that. But if you want our help executing the warrant for you, which you obviously do, you can’t make us help you unless we get a hearing into the legality of the warrant first.

The idea would be that you can’t bind a party with an order without giving it a legal right to challenge the order. As Learned Hand once put it, “no court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree.” Alemite Mfg. Corporation v. Staff, 42 F.2d 832, 832-33 (2d Cir. 1930). A court can only bind those who “can have their day in court” to challenge the order. Id. This doesn’t give Facebook a right to challenge to the warrant, but it does give them a right to challenge an order compelling their assistance with the warrant.

The best case in support of a due process right for a provider to challenge an assistance order is In re Application of the United States of America, 610 F.2d 1148 (3d Cir. 1979). In the case, the government obtained warrants allowing surveillance to occur on local telephone networks. The warrants included language ordering telephone companies to conduct surveillance on the government’s behalf. The companies objected on the ground that compliance with the warrants was unreasonably burdensome, and the issue in the case was whether the companies had a right to a pre-enforcement hearing about burdensomeness before being ordered to assist the government.

In an opinion by Chief Judge Seitz, the 3rd Circuit ruled that the telephone companies had a due process right to a hearing before they could be compelled to comply with the warrant. Here’s the analysis:

The procedural guarantees of due process attach when the state deprives a person of an interest in “liberty” or “property.” Board of Regents v. Roth, 408 U.S. 564, 569-72, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). We have no difficulty finding a deprivation of a property interest here. The tracing orders denied appellants the free use of their equipment and of the services of their employees, interests to which they are entitled as basic property and contract rights. Although the orders did not completely deprive appellants of these interests, the gravity of a deprivation is irrelevant to the existence of a property interest so long as the deprivation is not de minimis. Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). The appellants’ losses were not de minimis. Even with a series of ESS traces, the company must for a time forego other uses of its equipment and personnel. We must consider, therefore, whether a prior hearing is among the procedures that due process guarantees in this situation.

The most important requirement of due process is the opportunity to be heard at a meaningful time. Fuentes v. Shevin, 407 U.S. 67, 80-84, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). The time at which this hearing must occur, like any of the specific dictates of due process, is a function of three factors:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute requirement would entail.” Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). See Mattern v. Matthews, 582 F.2d 248, 254-57 (3d Cir. 1978), cert. denied, ___ U.S. ___, 99 S.Ct. 3101, 61 L.Ed.2d 876 (1979).

The factor which calls most strongly for a pre-enforcement hearing is the risk of an erroneous deprivation of property rights. As we have stated, the district court should not issue a tracing order that is unreasonably burdensome on the telephone company. The court is not likely to know most of the facts that would make an order too burdensome unless the company informs it of such facts. These facts include the type of switching equipment that will have to be utilized, the number of central offices carrying the calls, what sort of preparations might be possible, and the periods during which telephone company personnel would have to stand ready to execute a trace. Without a prior hearing, a district court is not likely to learn that a tracing 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. Therefore, the only meaningful time for a hearing on a challenge to a tracing order is prior to its enforcement.

The contract and property rights which a pre-enforcement order would protect are probably not the most zealously guarded rights in modern due process cases. Compare Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (right of welfare recipients to benefits necessary for subsistence). Nonetheless, these rights are of primary importance to a large business enterprise. Companies should not lose a meaningful opportunity to protect these rights without substantial reason.

The only substantial governmental interest in avoiding a pre-enforcement hearing is the interest of law enforcement agencies in executing tracing orders as soon as possible. Delay might seriously obstruct their investigation. However, we cannot find that this interest should completely rule out such a hearing. Considering that law enforcement agents will wish to trace calls over a period of several days, a short delay should not obstruct their efforts greatly.

We conclude that due process requires a hearing on the issue of burdensomeness before compelling a telephone company to provide tracing assistance. We will allow the various districts of the circuit to determine for themselves the particular mechanics for providing such a hearing. They may find it helpful to obtain views of counsel for interested parties.

Because the only practical way New York can execute the warrant is to have Facebook do it for them, a pre-enforcement right to challenge assistance may end up in practice as a pre-enforcement right to challenge the warrant.

III. A Due Process Right to Challenge Legality?

One tricky part about relying on the due process right is that it’s not entirely clear what can be challenged once Facebook gets its day in court. In the 3rd Circuit’s case, the telephone companies wanted a hearing into the burdensomeness of compliance. The court’s ruling effectively crates a constitutional right to the same hearing that a provider now gets by statute under the SCA in a challenge to a subpoena or 2703(d) order. The question is, does the same authority support a hearing into the legality of the warrant under the Fourth Amendment?

The argument for that would be that the “risk of an erroneous deprivation of property rights” is the same. If the underlying warrant is invalid, then it should not have issued; if it should not have issued, then any compelled assistance forces an “erroneous” deprivation of property rights; and that the best way to avoid that erroneous deprivation is to have some kind of hearing into whether the warrants complied with the Fourth Amendment. It might be a limited hearing — perhaps only about particularity that the provider knows about, rather than to the probable cause basis that the provider generally won’t know about. But it would be something, and I think it’s a better argument than the ones Facebook is making.

IV. Are SCA Warrants Hybrids or Not? The Amusing Switch of Views

Finally, I wanted to flag a a bit of a reversal in views about the nature of court orders under 2703(a) of the Stored Communications Act. Section 2703(a) orders are issued like warrants but served like subpoenas. The question is, should they be treated as warrants or as subpoenas? In the recent 2nd Circuit litigation over the Microsoft Ireland warrant, providers argued that these orders were warrants while the government saw them as akin to subpoenas. In this case, the providers see the orders as akin to subpoenas while the government insists that they are warrants. I think they’re both right in a sense. Section 2703(a) orders themselves are warrants, but that there needs to be a separate legal authority to also bind providers to assist with their execution — an assistance which is in the nature of a subpoena (whether of the All Writs Act in federal court or an analogous authority in state court). But I was more amused by the overall switch in perspective, albeit from different litigants representing the provider side and the government side.