COURT OF APPEALS STATE OFNEW YORK INRE:381 ......The NYU ACS discloses that it is a student organization at NYU School of Law and is a campus chapter of the national organization,

INTHEMATTEROFTHEMOTIONTOCOMPELDISCLOSUREOFTHESUPPORTINGAFFIDAVIT:RELATINGTOCERTAINSEARCHWARRANTSDIRECTEDTo FACEBOOK,INC.DATEDJULY23,2013

NOTICE OF MOTION FORLEAVE TO APPEAR ASAMICI CURIAE ONAPPELLANT'S MOTIONFOR LEAVE TO APPEAL(New York County ClerkIndex Nos. 30207/13,30178/14)

COURT OF APPEALSSTATE OF NEW YORK

INRE:381 SEARCHWARRANTSDIRECTEDTO :FACEBOOKINC.AND DATEDJULY23,2013,

PLEASE TAKE NOTICE that, pursuant to the attached Affirmation of

Mariko Hirose, Esq., and the proposed Brief of Amici Curiae, dated October 23,

2015, the New York Civil Liberties Union, the American Civil Liberties Union, the

New York University Law Chapter of the American Constitution Society, and the

New York State Association of Criminal Defense Lawyers will move this Court at

20 Eagle Street, Albany, New York 12207, on Monday, November 2,2015, for an

order granting this motion for leave, pursuant to this Court's Rule of Practice

SOO.23(a)(3), to appear as amici curiae and file the proposed amici curiae brief in

the above captioned case to support Facebook, Inc.'s motion for leave to appeal.

1

Dated: October 23,2015New York, N.Y.

Respectfully submitted,

-/II~/a;~Mariko HiroseArthur EisenbergNEW YORK CIVIL LIBERTIESUNION FOUNDATION125 Broad Street, 19th floorNew York, New York 10004Tel: (212) 607-3300Fax: (212) [email protected]

Alex AbdoAMERICAN CIVIL LIBERTIESUNION FOUNDATION125 Broad Street, 18th floorNew York, New York 10004Tel: (212) [email protected]

Counsel for Proposed Amici Curiae

NYU LAW CHAPTER OF THEAMERICAN CONSTITUTION SOCIETYBurt NeuborneNorman Dorsen Professor of Civil LibertiesFounding Legal Director, Brennan Centerfor Justice40 Washington Square South, 307New York, New York 10012Tel: (212) [email protected]

Amanda B. Bradyof Counsel toNEW YORK STATE ASSOCIATION OFCRIMINAL DEFENSELA WYERSPost Office Box 509Chester, New York 10918

2

To:

Clerk of the CourtNew York State Court of Appeals20 Eagle StreetAlbany, New York 12207

BENJAMIN E. ROSENBERGCYRUS R. VANCE, JR.Office of the New York CountyDistrict AttorneyOne Hogan PlaceNew York, New York 10013Telephone: (212) 335-9000Facsimile: (212) 335-9288

Attorney for Respondent

ORIN SNYDERALEXANDER H. SOUTHWELLTHOMAS H. DUPREE. JR.GABRIEL K. GILLETTGibson, Dunn & Crutcher, LLP200 Park Avenue, 47th FloorNew York, New York 10166Telephone: (212) 351-4000Facsimile: (212) 716-0858

Attorney for Appellant

3

INTHEMATTEROFTHEMOTIONTOCOMPELDISCLOSUREOFTHESUPPORTINGAFFIDAVIT:RELATINGTOCERTAINSEARCHWARRANTSDIRECTEDTo FACEBOOK,INC.DATEDJULY23,2013

(New York County ClerkIndex Nos. 30207/13,-30178/14)

COURT OF APPEALSSTATE OF NEW YORK

INRE: 381 SEARCHWARRANTSDIRECTEDTO :FACEBOOKINC.AND DATEDJULY23,2013,

AFFIRMATION OF MARIKO HIROSE IN SUPPORT OF MOTION FORLEAVE TO APPEAR AS AMICI CURIAE

MARIKO HIROSE, an attorney admitted to practice law in the courts of

1. I am an attorney for the New York Civil Liberties Union ("NYCLU"),

New York, affirms the following to be true under penalty of perjury:

counsel for the proposed amici curiae in this matter.

2. Pursuant to this Court's Rule of Practice 500.23(a)(3), the NYCLU,

the American Civil Liberties Union ("ACLU"), the American Constitution Society

at New York University School of Law ("NYU ACS"), and the New York State

Association of Criminal Defense Lawyers ("NYSACDL") request permission to

appear as amici curiae in the above captioned case. No prior application for such

relief has been made in this Court.

1

3. This case raises important questions that impact the digital privacy

and expressive rights of every New Yorker, including the threshold question of

whether companies like Facebook have the right to challenge an order to produce

its customers' records on the basis of its customers' privacy rights. The proposed

amici represent a cross-section of the New York community and

Facebook users whose rights will be adversely impacted if the decision below,

which erroneously answered that question in the negative, is permitted to stand.

Statements of Interest of Proposed Amici Curiae

4. The NYCLU is the New York State affiliate of the ACLU. Both

organizations are non-profit, non-partisan entities dedicated to the defense and

protection of the civil rights and civil liberties embodied in the Bill of Rights.

Among the most fundamental of rights are the rights of privacy and free expression

secured by the Fourth and First Amendments to the federal Constitution and by

Article I, Sections 12 and 8 of the New York State Constitution. The NYCLU and

the ACLU have been involved in efforts to ensure that the right to privacy remains

robust in the face of new technologies (see, e.g., Riley v California, 573 US -, 134

S Ct 2473 [2014] (holding that police may not search a cell phone under the

search-incident-to-arrest exception to the warrant requirement); United States v

Jones, 565 US -, 132 S Ct 945 [2012] (holding that attachment of GPS device to

automobile of criminal suspect in order to track suspect's movements constituted a

2

3

search under the Fourth Amendment); People v Weaver, 12 NY3d 433, 445 [2009]

(holding that prolonged use of GPS to monitor person's movement without a

warrant violated State constitutional right to privacy)).

5. The NYU ACS is the campus chapter of the American Constitution

Society for Law and Policy ("ACS") at New York University. Both are legal

organizations committed to using law as a force to improve the lives of all people.

Student members of NYU ACS represent future generations of progressive lawyers

and chose to attend New York University School of Law over its peer institutions

because of the school's commitment to public interest. NYU ACS is a strong

voice in the law school community for the importance of civil liberties and

Constitutional protections. NYU ACS uses social media platforms like Facebook

to promote the organization's educational and policy agendas, both through its own

profile and acting through its individual members and officers. NYU ACS

comprises young law students, each with an active presence on Facebook and other

social media platforms. As law students in an age of technology, NYU ACS has a

strong interest in protecting internet privacy and the right of technology companies

like Facebook to contest warrants it feels violates those rights.

6. The NYSACDL is a non-partisan entity dedicated to protecting the

rights of criminal defendants through a strong, unified and well-trained criminal

defense bar. Its guiding principle is that vigorous defense is the strongest bulwark

4

against error and injustice in the criminal justice system. It serves as a leader and

partner in advancing humane criminal justice policy and legislation. Further,

NYSACDL seeks to promote the rights of criminal defendants through the

adoption of policy positions, targeted concerted action and the submission of

amicus briefs on issues of significance to the fair administration of criminal justice

and the protection of civil liberties. NYSACDL maintains a member emaillistserv

and Facebook page, providing forums for members to exchange ideas and

information as well as make connections with colleagues.

Proposed Brief of Amici Curiae

7. Amici respectfully seek leave to participate as amici curiae in order to

describe how the case impacts users of Facebook and to identify arguments that

may otherwise escape the Court's consideration. First, amici explain why this case

raises issues that are important to over 60% of Americans who use Facebook to

communicate with friends and family, share photographs and videos, follow the

news, and form new connections with those with similar interests. The

pervasiveness of social media use in society today, the volume of communications

and expressive materials that people entrust to social media companies, and the

frequency of law enforcement requests for that data all weigh in favor of this Court

reviewing this case. The issues raised by this case have significant implications for

5

the Fourth Amendment, the First Amendment, and the equivalent protections under

the New York State Constitution.

8. Second, amici explain that the lower court decision was wrong and

deviated from decisions of other jurisdictions in holding that a company like

Facebook cannot object to orders to produce its customers' information on the

basis of the customers' constitutional rights. In holding that Facebook could not

challenge the warrants prior to execution, the lower court erroneously overlooked

the critical distinction between traditional warrants, which are directed to law

enforcement, and warrants under the federal Stored Communications Act ("SCA"),

18 USC § 2703(a), which are served on third parties like Facebook and compel

their assistance in their execution. For the latter types of orders-like subpoenas

or All Writs Act orders-the recipients of the orders have always had the inherent

constitutional right to challenge their validity. And when those recipients are

companies like Facebook, courts have permitted them to raise the constitutional

rights of their customers in challenging the orders prior to execution.

9. Third, amici argue that the case is not moot because the Manhattan

District Attorney continues to hold on to the communications in the 381 Facebook

accounts that it obtained pursuant to a broad set of warrants. The case continues to

present a controversy to those accountholders who were subject to the warrants,

especially the 319 users who were not indicted, and remains of interest to all

Facebook users whose digital privacy rights are affected by the case.

10. The proposed brief satisfies the criteria of this Court's Rule of

Practice 500.23(a)( 4) because it "identiflies] law or arguments that might

otherwise escape the Court's consideration," as described above, and the brief

"otherwise would be of assistance to the Court" in presenting the views of a cross-

section of the society impacted by this case.

11. A copy of the proposed brief of amici curiae is included with this

submission as Exhibit A.

Disclosure Statements

12. Pursuant to this Court's Rule of Practice 500.1(£), the NYCLU

discloses that it is a non-profit 501(c)(4) organization and does not have

subsidiaries or affiliates. The NYCLU is the New York State affiliate of the

13. The ACLU discloses that it is a non-profit membership organization;

it has no stock and no parent corporations. The ACLU has state affiliates, which

are listed in Exhibit B to this affirmation.

14. The NYU ACS discloses that it is a student organization at NYU

School of Law and is a campus chapter of the national organization, American

Constitution Society for Law and Policy.

ACLU.

6

MARIKO HIROSE

15. The NYSACDL discloses that it is a 501(c)6 nonprofit organization

and is an affiliate of the National Association of Criminal Defense Lawyers.

Dated: October 23,2015New York, NY

New York Civil Liberties Union Foundation125 Broad Street, 19th FloorNew York, NY 10004Telephone: (212) 607-3300Facsimile: (212) 607-3318

7

EXHIBIT A

<tourt of ~ppcal% of tbc~tatc of ~cbJ ~ork

New York County Clerk's Index Nos. 30207/13, 30178/14

IN RE: 381 SEARCH WARRANTS DIRECTED TO FACEBOOK INC. AND DATEDJULY 23,2013

IN THE MATTER OF THEMOTION TO COMPEL DISCLOSURE OF THE SUPPORTINGAFFIDAVIT RELATING TO CERTAIN SEARCH WARRANTS DIRECTED TO FACEBOOK,INC., DATED JULY 23,2013

Respondent,

FACEBOOK, INC.,Appellant,

-against-

NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE,

BRIEF OF AMICI CURIAE THE NEW YORK CIVIL LIBERTIES UNION,THE AMERICAN CIVIL LIBERTIES UNION, THE AMERICANCONSTITUTION SOCIETY AT THE NEW YORK UNIVERSITY

SCHOOL OF LAW, AND THE NEW YORK STATE ASSOCIATION OFCRIMINAL DEFENSE LAWYERS

ALEXABDOAMERICAN CIVIL LIBERTIESUNION FOUNDATION

125 Broad Street, is" FloorNew York, New York 10004Telephone: (212) [email protected]

MARIKO HIROSEARTI-IUREISENBERGNEW YORI( CIVIL LIBERTIES UNIONFOUNDATION125 Broad Street, 19th FloorNew York, New York 10004Telephone: (212) 607-3300Facsimile: (212) [email protected]

Dated: October 23, 2015Counsel for amici curiae(Continued on next page)

AMANDAB. BRADYOF COUNSEL TONEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LA WYERSPost Office Box 509Chester, New York 10918

NYULAW CHAPTER OF THE AMERICAN CONSTITUTION SOCIETYBURT NEUBORNENorman Dorsen Professor of Civil LibertiesFounding Legal Director, Brennan Center for Justice40 Washington Square South, 307New York, New York 10012Tel: (212) [email protected]

TABLE OF CONTENTS

TABLE OF AUTHORITIES iiPRELIMINARY STATEMENT 1ARGUMENT 4I. THIS CASE RAISES IMPORTANT AND RECURRING ISSUES THAT

AFFECT THE DIGITAL PRIVACY RIGHTS OF ALL NEW YORIŒRS. 4II. THE DECISION BELOW CONFLICTS WITH DECISIONS OF OTHER

COURTS THAT PERMIT COMPANIES TO RAISE PRE-ENFORCEMENT CONSTITUTIONAL CHALLENGES TO ORDERS TOTURN OVER CUSTOMER DATA 8A. Third Parties Served With Stored Communications Act Warrants Have

The Right to Move to Quash the Warrants 8B. Third Parties May Move to Quash Stored Communications Act Warrants

Based on the Constitutional Rights of their Customers 12III. THE DISPUTE OVER THE CONSTITUTIONALITY OF THE

WARRANTS IS NOT MOOT 17CONCLUSION 19

APPENDIX APP1STATEMENTS OF INTEREST OF AMICI CURIAE APP1DISCLOSURE STATEMENTS APP4

TABLE OF AUTHORITIES

CASES

Amazon.com, LLC v Lay,758 F Supp 2d 1154 [WD Wash. 2010] 13

Application af U S. af Am. for an Order Authorizing an In-ProgressTrace of Wire Communications Over Tel. Facilities,616 F2d 1122 [9th Cir 1980] 11

Application af U S. af Am. for Order Authorizing Installation af PenRegister or Touch-Tone Decoder & Terminating Trap,610 F2d 1148 [3d Cir 1979] 9, 11

Berger v New York,388 US 41 [1967] 7

Church of Sci entology of Cal. v United States,506 US 9 [1992] 18

Craig v Boren,429 US 190 [1976] 14, 15

Donovan v Lone Steer, Inc.,464 US 408 [1984] 10

Enterline v Pocono Med. Ctr.,751 F Supp 2d 782 [MD Pa 2008] 13

In re Grand Jury Subpoena to Amazon. com Dated Aug. 7,2006,246 FRD 570 [WD Wise 2006] 13

In re Order Requiring Apple, Inc. to Assist in the Execution of a SearchWarrant Issued by This Court,2015 WL 5920207 [ED NY, Oct. 9,2015, 15 Misc. 1902 (JO)] 12

ii

In re Subpoena Duces Tecum to Am. Online, Inc.,52 Va Cir 26,2000 WL 1210372 [2000] 13

Matrixx Initiatives, Inc. v Doe,138 Cal App 4th 872 [Cal Ct of Appea12006] 13

In re Verizon Internet Servs., Inc.,257 F Supp 2d 244 [DDC 2003] 13

In re Warrant to Search a Certain E-Mail Account Control/ed &Maintained by Microsoft Corp.,15 F Supp 3d 466 [SD NY 2014] 9

In re XXX; Inc.,2014 WL 5510865 [SD NY, Oct. 31,2014, No. 14 MAG. 2258] 12

Matter of Abrams,62 NY2d 183 [1984] 10

Matter of Brunswick Hospital v Hynes,52 NY2d 333 [1981] 18

Matter of Grand Jury Subpoenasfor Locals 17,135,257, & 608 of theUnited Bhd. of Carpenters & Joiners of Am., AFL-CIO,72 NY 2d 307 [1988] 17, 18

Matter of Inter-City Assoc. v Doe,3O8 NY 1044 [1955] 11

Me Vicker v King,266 FRD 92 [WD Pa 2010] 13

N. Y County Lawyers' Assn. v State,294 AD2d 69 [1st Dep't 2002] 14, 15, 16

Missouri v Frye,566 US -,143 S Ct 1399 [2012] 16

People v Baret,23 NY3d 777 [2014] 16

People v Johnson,103 AD2d 754 [2d Dept 1984] 11

111

United States v Galpin,720 F3d 436 [2d Cir 2013] 7

People v P.J. Video, Inc.,68 NY2d 296 [1986] 8

Riley v California,573 US -,134 S Ct 2473 [2014] 5,7

See v City of Seattle,387 US 541 [1967] 10

Singleton v Wulff,428 US 106 [1976] 15

Sony Music Entm 't Inc. v Does 1-40,326 F Supp 2d 556 [SD NY 2004] 18

Stanford v Texas,379 US 476 [1965] 8

United States v New York Tel. Co.,434 US 159 [1977] 11

United States v Warshak,631 F3d266 [6thCir2010] 10

18USC§2703 1,3

28 USC § 1651 11

RULES, REGULATIONS AND STATUTES

CPL 690.25 [2] 9

IV

Pew Research Center, Social Networking Fact Sheet,http://www .pewinternet.org/fact-sheets/ social-networking-fact-sheet! [last visited Oct. 22, 2015] 5

MISCELLANEOUS

Aaron Smith, Pew Research Center, Cell Phones, Social Media andCampaign 2014, http://www.pewinternet.org/files/20 14/1O/PI_CellPhonesSocialMediaCampaign20 14_110314.pdf [Nov. 3, 2014] 6

Amanda Lenhart et aI., Pew Research Center, Teens, Technology &Friendships, http://www.pewinternet.org/files/20 15/08/Teens-and-Friendships- FINAL2.pdf [Aug. 6, 2015] 6

Amanda Lenhart, Teens, Social Media & Technology Overview 2015,http://www.pewinternet.org/files/2015/04/PI_TeensandTech_Update2015 _0409l51.pdf [Apr. 9, 2015] 5

Facebook "Company Info," http://newsroom.fb.com/company-info/[last visited Oct. 21, 2015] 5

James C. McKinley Jr., Judge Drops Chargesfor 8 in an Inquiry onBenefits, NY Times, http://www.nytimes.com/2014/08/22/nyregion/judge-drops-charges- for-8 -in-an-inquiry-on -benefits.html[Aug. 21, 2014] 16

Maeve Duggan et aI., Pew Research Center, Parents and Social Media,.http://www .pewinternet.org/files/20 15/07/Parents-and-Social- Media- FIN-DRAFT-071515.pdf [July 16,2015] 6

Maeve Duggan, Pew Research Center, Mobile Messaging andSocial Media 2015, http://www.pewintemet.org/files/2015/08/Social-Media-Update-2015-FINAL2.pdf [Aug. 19,2015] 2, 5

Transparency Report: Information Requests (2015: Jan 1- June 30),Twitter, https://transparency.twitter.com/information-requests/2015/jan-jun [last visited Oct. 22, 2015] 7

v

United States Law Enforcement Requests for Data(July 2014- December 2014), Facebook, https://govtrequests.faeebookeom/eountry/United%20States/2014-H2/ [last visited Oct. 22, 2015] 6

vi

PRELIMINARY STATEMENT

Amici curiae the New York Civil Liberties Union, the American Civil

Liberties Union, the American Constitution Society at the New York University

School of Law, and the New York State Association of Criminal Defense Lawyers

join Facebook in requesting that the Court grant leave to hear this important case

that impacts the digital privacy and expressive rights of every New Yorker.' In

this case, in the course of an investigation into disabilities fraud, the Manhattan

District Attorney served on Facebook a set of warrants for the content of381 user

accounts-including any private messages, chat histories, photographs, comments

posted on pages of friends and family, and membership lists of religious, political,

and other social groups to which the users belong.' At the same time, the

Manhattan DA obtained an indefinite gag order that ensured that those targeted

Facebook users could not find out about the warrants.' Served with warrants that it

believed to be unconstitutionally overbroad, Facebook did what no other party was

l Amici curiae are organizations committed to defending civil rights and civil liberties in thedigital age. The statements of interests of amici curiae, as well as their disclosure statements, areattached in the Appendix to this brief.2 A copy of one of the warrants at issue is included at page A9 of the Appendix of AppellantFacebook, Inc., filed on June 20,2014, with the Appellate Division, First Department ("App.").3 The gag order was included as part ofthe warrants. (See App. AII-12 ("Further, pursuant to18 usc § 2703(b), this court orders Facebook not to notify or otherwise disclose the existence orexecution of this warrant/order to any associated user/account holder, since such disclosure couldcause individuals to flee, destroy evidence, or otherwise interfere with an ongoing criminalinvestigation.") ).

1

The amici supplement Facebook's motion with three reasons why this Court

in the position to do at the time: stand up for the constitutional rights of its users by

moving to quash the warrants.

should review the lower court decision, which erroneously held that, no matter

how overreaching and overbroad the warrants, Facebook could not move to quash

them prior to execution in order to protect the constitutional rights of its customers.

First, this case raises important and recurring issues about digital communication

privacy that this Court should address because they have significant implications

for the Fourth Amendment, the First Amendment, and the equivalent protections

under the New York State Constitution. Facebook operates a popular social media

platform used by 62% of Americans to communicate with friends and family, share

electronic searches and seizures.

photographs and videos, follow the news, and form new connections with those

with similar interests." The pervasiveness of social media use in society today, the

volume of communications and expressive materials that people entrust to social

media companies, and the frequency of law enforcement requests for that data all

weigh in favor of this Court stepping in to enforce constitutional limitations on

4 Maeve Duggan, Pew Research Center, Mobile Messaging and Social Media 2015 at 3,http://www.pewintemet.org/files/20IS/08/Social-Media-Update-20IS-FINAL2.pdf [Aug. 19,2015].

2

Second, the lower court was wrong and should be reversed. In holding that

Facebook could not challenge the warrants prior to execution, the lower court

erroneously overlooked the critical distinction between traditional warrants, which

authorize law enforcement to invade private property, and warrants under the

federal Stored Communications Act ("SCA"), 18 USC § 2703(a), which are served

on third parties like Facebook and compel their assistance in their execution. For

the latter type of orders-like subpoenas or writs under the All Writs Act-the

recipients of such orders have always had the inherent constitutional right to

challenge their validity. And when those recipients are companies like Facebook,

courts have permitted them to raise the constitutional rights of their customers in

challenging the orders prior to execution.

Finally, the case is not moot, because the Manhattan DA still possesses a

trove of private communications about people's lives that it obtained through the

warrants-including, presumably, the accounts of 319 Facebook users who were

never charged with any crime. What the Court decides in this case will impact

whether the DA may hold on to this data or whether it must be expunged. This

Court should hear the appeal in this case to determine the rights of the Facebook

account holders whose private communications are in the DA's hands and to

3

4

protect the rights of all social media users from unconstitutional overreach by the

government in the future.'

ARGUMENT

I. THIS CASE RAISES IMPORTANT AND RECURRING ISSUESTHAT AFFECT THE DIGITAL PRIVACY RIGHTS OF ALL NEWYORKERS.

This case raises a multitude of questions about searches and seizures of

electronic communications, including the threshold issue of whether social media

companies can challenge requests that they believe are unconstitutional and the

merits issue of whether a warrant that seeks everything in a person's social media

account without limitation meets the particularity requirement of the Fourth

Amendment (see Facebook Mem. in Support of Mot. for Leave to Appeal, Sept.

29,2015 ("Facebook Appeal Mem."), at 1-2). These are important and recurring•

questions that implicate the First and Fourth Amendments, particularly given the

number of people that are on social media today, the wealth of deeply personal

communications and expressive materials entrusted to social media companies, and

frequent law enforcement requests to dip into that data.

5 The case also raises important questions about (1) whether an indefinite gag order that prohibitscompanies from informing their customers of the seizure of their private data complies with theFirst Amendment and (2) how long the government may keep secret the applications that servedas the basis for the warrants. (See Facebook Appeal Mern. at 1-2.) Although amici do notaddress these issues in this brief, amici urge the Court to decide these questions, which theAppellate Division incorrectly failed to do.

Over the past decade, social media has become an increasingly important

platform for speech in the United States. As of January 2014, 74% of all Internet

users in the United States, and 89% percent of all Internet users between the ages

of 18 and 29, used social media." Recent statistics show that, in the United States,

62% of the entire adult population, and 71% of teens 13 to 17 are on Facebook-

the most popular social media platform across all age groups.' In June of2015,

Facebook had 163.6 million daily active users from the United States and Canada."

The wealth of private communications that people across all age groups

entrust to social media companies is incomparable to any medium from the pre-

digital age (compare Riley v California, 573 US -, -, 134 S Ct 2473,2488-89

[2014] (rejecting comparison between a search of physical items and a digital

search of a cell phone because of the volume and the sensitivity of the data

accessible from cell phones)). Social media platforms like Facebook allow users to

post updates about their relationships and families, share photographs and videos

of their everyday lives as well as their travels, re-connect with their childhood

friends, join online networking groups around certain interests and hobbies, and

receive and comment on news. Teens use social media to communicate with

6 Pew Research Center, Social Networking Fact Sheet, http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/ [last visited Oct. 22,2015].7 Mobile Messaging and Social Media 2015, supra n. 4, at 3; Amanda Lenhart, Teens, SocialMedia & Technology Overview 2015 at 2,http://www.pewinternet.org/files/2015/04/PI_TeensandTech _Update2015 _0409151.pdf [Apr. 9,2015].8 Facebook "Company Info," http://newsroom.fb.com/company-info/ [last visited Oct. 21,2015].

5

The trove of private electronic communications generated on social media

friends, make new friends, and to find support in challenging times." So do

parents." Social media, particularly Facebook, is also "playing an increasingly

prominent role in how voters get political information and follow election news."!'

platforms like Facebook has proven irresistible to law enforcement around the

country, including New York law enforcement. In the six months between July

and December of20l4, Facebook received 14,274 information requests from U.S.

law enforcement agencies regarding 21,731 users or accounts.v' From January to

June of this year, Twitter received 2,436 information requests from U.S.

government agencies regarding 6,324 accounts-more requests than in the past

9 Amanda Lenhart et al., Pew Research Center, Teens, Technology & Friendships at 2,http://www.pewinternet.org/files/2015/08/Teens-and-Friendships-FINAL2.pdf [Aug. 6, 2015]("The most common spots for meeting friends online are social media sites like Facebook orInstagram"); id. at 6 (finding that "[s]ocial media helps teen feel more connected to their friends'feelings and daily lives, and also offers teens a place to receive support from others duringchallenging times"); id. at 27 ("[s]ocial media is also an important digital channel through whichteens communicate with their friends").iO Maeve Duggan et al., Pew Research Center, Parents and Social Media at 2,http://www.pewinternet.org/files/20 15/07/Parents-and-Social-Media-FIN -DRAFT -071515.pdf[July 16, 2015].11 Aaron Smith, Pew Research Center, Cell Phones, Social Media and Campaign 2014 at 1,http://www. pewinternet.org/files/20 14/1O/PI_CellPhonesSocialMediaCampaign20 14_110314. pdf [Nov. 3,2014].12 United States Law Enforcement Requests for Data (July 2014- December 2014), Facebook,https://govtrequests.facebookcom/country/United%20States/2014-H2/ [last visited Oct. 22,2015].

6

Despite these frequent law enforcement demands for social media

reporting periods.'? New York was the origin of315 of the requests to Twitter in

2015, more than any other state."

information, there is little case law in New York State that ensures that prosecutors

cannot engage in an overzealous intrusion into people's intimate electronic data in

7

violation of the Fourth Amendment, the First Amendment, and state constitutional

protections. This lack of guidance is concerning given the scope and volume of

electronic communications contained in social media accounts-what could

amount to "a digital record of nearly every aspect of [people's] lives" (Riley, 134 S

Ct at 2490 (recognizing the capacity of cell phones to store high volume of private

data)). Searches and seizures of such digital storage require heightened sensitivity

to constitutional limitations, because otherwise they raise "a serious risk that every

warrant for electronic information will become, in effect, a general warrant,

rendering the Fourth Amendment irrelevant" (United States v Galpin, 720 F3d 436,

447 [2d Cir 2013] (internal quotation marks omitted); Berger vNew York, 388 US

41, 56 [1967] (stating, in the context of wiretapping, that the need for stringent

limitations on warrants is "especially great" when the searches by their nature

"involve[] an intrusion on privacy that is broad in scope.")). This is particularly

13 Transparency Report: Information Requests (20i5: Jan i- June 30), Twitter,https://transparency.twitter.com/information-requests/201S/jan-jun [last visited Oct. 22,2015].14 (Id.) Facebook's report does not provide a similar breakdown by state.

In holding that Facebook could not challenge the SCA warrants before

true where, as here, the searches and seizures involve expressive and

communicative materials (see Stanford v Texas, 379 US 476, 485 [1965] (stating

that the Fourth Amendment must be applied with "scrupulous exactitude" in a

seizure of expressive materials); People vP.J. Video, Inc., 68 NY2d 296,299

[1986] (imposing "a more exacting standard for the issuance of warrants ... than

... the Federal Constitution" where the warrant involved the seizure of expressive

materials)).

This case presents an opportunity for this Court to provide guidance to lower

courts, prosecutors, and social media companies on when and how law

enforcement can compel a social media company to turn over its users' electronic

communications, and whether the company can object to such demands at the

outset based on the constitutional rights of its customers. The Court should grant

leave to hear this appeal and, for the reasons explained below, reverse the lower

court on the procedural question and reach the merits issue raised by this case.

II. THE DECISION BELOW CONFLICTS WITH DECISIONS OFOTHER COURTS THAT PERMIT COMPANIES TO RAISE PRE-ENFORCEMENT CONSTITUTIONAL CHALLENGES TO ORDERSTO TURN OVER CUSTOMER DATA.

A. Third Parties Served With Stored Communications Act WarrantsHave The Right to Move to Quash the Warrants.

8

turning over its customers' data, the Appellate Division erroneously ignored a key

1979] (explaining that Federal Rules of Criminal Procedure "den[y] ordinary

distinction between SCA warrants and traditional warrants (see Southwell Decl.

Ex. A (Slip Op. 15_16)).15 Traditional warrants are, by rule and design, directed at

law enforcement and empower law-enforcement officials to search for and seize

the objects of the warrant (CPL 690.05 [2] [a] ("A search warrant is a court order

and process directing a police officer to conduct ... a search of designated

premises ... for the purpose of seizing designated property or kinds of property,

and to deliver any property so obtained to the court which issued the warrant

.... "); Application of us. of Am. for Order Authorizing Installation of Pen

Register or Touch-Tone Decoder & Terminating Trap, 610 F2d 1148, 1154 [3d Cir

citizens and corporations the authority to execute search warrants" in order to

"guard against excessive and abusive use of the extraordinary power to search

private premises and seize private property.")). By contrast, SCA warrants are, as

the lower court itself recognized, similar to subpoenas, in that they are served

directly on a third party and compel the third party to take action (Slip Op at 15-16;

see also In re Warrant to Search a Certain E-Mail Account Controlled &

Maintained by Microsoft Corp., 15 F Supp 3d 466,471 [SD NY 2014] (noting that

an SCA warrant is "executed like a subpoena in that it is served on the [internet

service provider] in possession of the information and does not involve

15 "Southwell Decl." refers to the Declaration of Alexander H. Southwell submitted withFacebook's motion for leave to appeal.

9

This is not "a distinction without a difference," as the lower court held (Slip

government agents entering the premises of the [internet service provider] to

search its servers and seize the e-mail account in question" and permitting without

discussion a motion to quash the warrantj)."

Op at 16). Parties served with a subpoena or an SCA warrant may have legitimate

objections to spending their resources assisting law enforcement. The U.S.

Supreme Court has made clear in the context of subpoenas that such third parties

have the constitutional right to an opportunity to question "the reasonableness of

the subpoena, before suffering any penalties for refusing to comply with it, by

raising objections in an action in district court" (Donovan v Lone Steer, Inc., 464

US 408,414-415 [1984]; See v City of Seattle, 387 US 541, 544-545 [1967]

(stating that "the subpoenaed party may obtain judicial review of the

reasonableness of the demand prior to suffering penalties for refusing to

comply.")). Under New York law, too, subpoenas issued in the course of criminal

investigations are subject to motions to quash, and an order denying such a motion

is appealable (see Matter of Abrams, 62 NY2d 183,192 [1984]; Matter of Inter-

16 The fact that the SCA warrants are similar to subpoenas in certain respects does not mean thatthe same substantive standard should govern their issuance. The substantive standard for theproduction of information as sensitive as that at issue here is governed by the FourthAmendment, and thus the DA was correct to apply for a warrant to obtain it (see e.g. UnitedStates v Warshak, 631 F3d 266,288 [6th Cir 2010] ("The government may not compel acommercial [Internet service provider] to turn over the contents of a subscriber's emails withoutfirst obtaining a warrant based on probable cause. ")).

10

City Assoc. vDoe, 308 NY 1044, 1044-1045 [1955]; People v Johnson, 103 AD2d

754, 754-755 [2d Dept 1984]).

Established case law on the All Writs Act, 28 USC § l65l-writs that courts

may issue to require third parties to assist law enforcement with the execution of

warrants (see United States vNew York Tel. Co., 434 US 159, 172 [1977]

(recognizing use of All Writs Act orders in that manner))-also supports the

significance of this distinction. All Writs Act orders are similar to SCA warrants

and subpoenas in that they are served on third parties and require the third parties

to take action. All federal courts to have considered the question, including two

federal appellate courts, have held that a third party served with an All Writs Act

order has the constitutional right to challenge the reasonableness of the order prior

to its execution (see Application of U. S. of Am. for an Order Authorizing an In-

Progress Trace of Wire Communications Over Tel. Facilities, 616 F2d 1122, 1132-

1133 [9th Cir 1980] (holding that a telephone company served with an All Writs

Act order to aid in the execution of a warrant for tracing phone calls must be given

an opportunity to challenge it); Application of U. S. of Am. for Order Authorizing

Installation of Pen Register or Touch-Tone Decoder & Terminating Trap, 610 F2d

1148, 1156-1157 [3d Cir 1979] (same); In re.xxx, Inc., 2014 WL 5510865, *2

[SD NY, Oct. 31, 2014, No. 14 MAG. 2258] (same for court order demanding a

telephone manufacturer's assistance in unlocking a cell phone in aid of a search

11

The court below therefore erred in subjecting the SCA warrants at issue here

warrant); In re Order Requiring Apple, Inc. to Assist in the Execution of a Search

Warrant Issued by This Court, 2015 WL 5920207, *10 [ED NY, Oct. 9, 2015,15

Misc. 1902 (JO)] (same).

to the same procedural rules as traditional warrants. Because SCA warrants are

served on third parties and compel third parties to assist in their execution, they

should not be treated the same as traditional warrants. Instead, the Constitution

requires recipients of SCA warrants to be given the same procedural protections as

recipients of subpoenas-namely, the opportunity to challenge them prior to

compliance.l ' Facebook therefore had the right to move to quash the SCA

warrants and the right to appeal the trial court's denial of its motion, just as it

would have if it had been served with a subpoena.

The Appellate Division further erred in holding that the customers' privacy

B. Third Parties May Move to Quash Stored Communications ActWarrants Based on the Constitutional Rights of their Customers.

interests should be litigated in post-execution motions to suppress brought by the

customers themselves, rather than in Facebook's motion to quash the SCA

warrants (see Slip Op at 11-13). That decision conflicts with "[t]he trend among

courts ... to hold that entities such as newspapers, internet service providers, and

17 The lower court's decision holding that the SCA did not provide for such an opportunity wastherefore erroneous (see Slip Op at 21-22). To avoid constitutional problems, this Court shouldinterpret the SCA to allow for pre-execution challenges.

12

website hosts may, under the principle of jus tertii [or "third party"] standing,

assert the rights of their readers and subscribers" (Me Vicker v King, 266 FRD 92,

95-96 [WD Pa 2010] (holding that a media company may raise the free speech

rights of its anonymous bloggers in objecting to a subpoena); see also, e.g.,

Enterline vPocono Med. Ctr., 751 F Supp 2d 782,786 [MD Pa 2008] (same as to

newspaper defending the free speech rights of its anonymous commentators); In re

Verizon Internet Servs., Ine., 257 F Supp 2d 244,257-58 [DDC 2003] (same as to

Verizon defending the anonymous speech rights of its customers), rev'd on other

grounds, Recording Indus. Assn. of Am. v Verizon Internet Servs., Inc., 351 F3d

1229 [DC Cir 2003]; In re Subpoena Duces Tecum to Am. Online, Inc., 52 Va Cir

26,2000 WL 1210372, *4-5 [2000] (same as to America Online), rev'd on other

grounds, 261 Va 350, 542 SE2d 377 [2001]; see also Amazon. com, LLC v Lay, 758

F Supp 2d 1154, 1167-68 [WD Wash. 2010] (without discussion, permitting

Amazon to move to quash a subpoena based on their customers' right to

anonymously purchase expressive materials online); In re Grand Jury Subpoena to

Amazon. com Dated Aug. 7,2006,246 FRD 570,572 [WD Wisc 2006] (same)). In

the one case that splits with this trend, Matrixx Initiatives, Inc. vDoe (138 Cal App

4th 872,877-79 [Cal Ct of AppeaI2006]), a state court denied the company's

standing to raise the constitutional rights of parties with whom it had shown no

relationship, and where the parties could themselves move to quash the subpoena.

13

In this case, of course, Facebook's customers could not move to quash the SCA

warrants at the time of service because Facebook was under a gag order prohibiting

it from notifying its users (App. All).

This Court should reject the decision below and follow the national trend of

allowing companies to object to law enforcement orders on the basis of the

constitutional rights of its customers. In determining whether third-party standing

exists, New York courts have considered: "( 1) the presence of some substantial

relationship between the party asserting the claim with the rightholder, (2) the

impossibility of the rightholder asserting his own rights, and (3) the need to avoid a

dilution of the parties' constitutional rights." (N Y. County Lawyers' Assn. v State,

294 AD2d 69, 75 [1st Dep't 2002].

Here, Facebook satisfies all three factors for raising the constitutional rights

of its users. First, Facebook and its users have a "substantial relationship" based

on their business-client relationship and Facebook's commercial interest in

assuring its customers that it will safeguard their most personal data (see, e.g.,

Craig vBoren, 429 US 190, 195-97 [1976] (allowing beer vendor to assert equal

protection claims of its customers); supra at 13 (citing cases that have permitted

companies to raise the anonymous speech rights of their customers)). Second, it

would have been impossible for the affected Facebook users to assert their own

14

rights at the time that Facebook was served with the SCA warrants, because the

gag order barred Facebook from notifying its users of the warrants (App. All).

Finally, if Facebook cannot assert the constitutional rights of its users,

particularly those kept deliberately unaware of the intrusion into their privacy, then

its users' constitutional rights will be diluted because the users would no longer

have the most effective line of protection against unconstitutional overreach (see

NYCLA, 294 AD2d at 76 (holding that constitutional rights will be diluted in the

absence of granting third-party standing to criminal defense attorneys because

indigent clients are not in a position to litigate on their own behalf and other

remedies that they have are not as effective in protecting their rights); see also,

e.g., Craig, 429 US at 193-94 (finding third-party standing for vendors of alcoholic

beverages while recognizing the possibility of injured third parties bringing their

own cases); Singleton v Wulff, 428 US 106, 117 [1976] (permitting physicians to

assert women's interest in securing an abortion despite availability of several

means by which women could litigate their rights directly)). The Appellate

Division's statement that the constitutional rights of Facebook's users could be

protected through post-execution motions to suppress misses the point (see Slip Op

at 11-13). A motion to suppress is an inadequate protection for privacy because by

the time there is an opportunity to file such a motion, the government has already

seized and rummaged through the highly intimate records. Moreover, it is

15

16

meaningless to those never charged with a crime, or whose cases were dismissed,

or whose Facebook accounts contained no evidence relating to a crime. In other

words, motions to suppress are the least adequate remedy when the government

conduct is most constitutionally suspect.

This case is illustrative of the inadequacy of motions to suppress as a remedy

for privacy violations. Of the 381 targeted Facebook user accounts in the city's

investigation of disability fraud, 319 users were not indicted (Slip Op at 23 n.9).

Some of those indicted had their charges dismissed after newly discovered

evidence suggested that they had indeed been disabled." Over two years after the

trial court decision denying Facebook's motion to quash, amici are not aware of

any case in which the particularity of the warrants at issue has been decided in a

motion to suppress." The existence of a potential remedy that is so illusory and

ineffective should not preclude Facebook's third-party standing to raise the

constitutional rights of its customers at the point that it matters-the point before

the government has been able to engage in conduct that violates the customers'

privacy rights (see NYCLA, 294 AD2d at 76).

18 See James C. McKinley Jr., Judge Drops Charges for 8 in an Inquiry on Benefits, NY Times,http://www.nytimes.com/20 14/08/22/nyregionljudge-drops-charges- for- 8-in-an -inquiry-on-benefits.html [Aug. 21,2014].19 It is also an illusion that every criminal case will reach a point where a motion to suppress isfiled. It is likely that most of the prosecutions related to this case will conclude with pleabargains without reaching motion practice. (See Missouri v Frye, 566 US -, -, 143 S Ct 1399,1408 [2012] ("[O]urs 'is for the most part a system of pleas, not a system of trials. '''); People vBaret, 23 NY3d 777,800 [2014] (recognizing "the sheer volume of prosecutions disposed of byguilty plea").)

In opposing this Court's review, the Manhattan DA presses this Court to

The Court should therefore grant leave to hear this case and to correct the

split between the Appellate Division decision and case law from other courts

permitting companies like Facebook to assert constitutional objections on behalf of

their customers in pre-execution challenges to orders to turn over customers'

private communications. Reversing the Appellate Division will allow the Court to

decide the important merits issues raised by this case that the court below failed to

reach.

III. THE DISPUTE OVER THE CONSTITUTIONALITY OF THEWARRANTS IS NOT MOOT.

find that the appeal is moot because ofFacebook's compliance with the warrants

(Brief of DA at 8-10), despite the Appellate Division's silence on the very same

argument. In so arguing, the DA ignores the principle that "an appeal is not

rendered moot if there remain undetermined rights or interests which the respective

parties are entitled to assert" (Matter of Grand Jury Subpoenas for Locals 17, 135,

257, & 608 of the United Bhd. of Carpenters & Joiners of Am., AFL-CIO, 72 NY

2d 307, 311 [1988]). Here, the rights of the Facebook users remain undetermined

Facebook's users and, as far as the amici are aware, has not made any commitment

because the DA still possesses vast quantities of sensitive information belonging to

the parties remain undetermined because the membership lists ... remain under the

to destroy or return that information (see id. at 311-312 ("In this case, the rights of

17

adjudication of this case-an order that the government return the information and

control of the Assistant District Attorney and continue to be used by him in the

investigation.t'j)." The existence of a possible remedy flowing from the

be prohibited from using it-prevents the case from being moot (see Church of

Scientology of Cal. v United States, 506 US 9, 13 [1992] (holding that "[e]ven

though it is now too late to prevent, or to provide a fully satisfactory remedy for,

the invasion of privacy that occurred ... , a court does have power to effectuate a

partial remedy by ordering the Government to destroy or return any and all copies

it may have in its possession" and that "this possible remedy" prevented the case

from being moot); Sony Music Entm 't Inc. vDoes 1-40, 326 F Supp 2d 556,561

[SD NY 2004] (rejecting the argument that compliance with a subpoena moots a

timely filed motion to quash because the court is empowered to order the return of

the information and prohibit its use)). Thus the challenge to the search and seizure

of Facebook users' communications remains a live controversy properly before

this Court.

20 The cases from this Court cited by the DA to argue for mootness (Brief ofDA at 8-9) bothpredate Matter of Grand Jury Subpoenas (72 NY2d 307), and in any event one case, Matter ofBrunswick Hospital v Hynes (52 NY2d 333,339 [1981]), does not discuss mootness as in thatcase the motion to quash itself was filed after compliance with the subpoena. The other lowercourt decisions cited by the DA also do not discuss the exception set forth in the Matter of GrandJury Subpoenas.

18

CONCLUSION

For the reasons above, the Court should grant Facebook permission to

appeal this case, reverse the Appellate Division's decision holding that Facebook

cannot move to quash the warrants based on the constitutional rights of its

customers, and decide whether the set of warrants issued to Facebook by the

Manhattan DA's office complied with the constitutional requirements for

electronic searches and seizures.

DATE: October 23,2015

Respectfully submitted,

~e~Arthur EisenbergNEW YORK CIVIL LIBERTIESUNION FOUNDATION125 Broad Street, 19th floorNew York, New York 10004Tel: (212) 607-3300Fax: (212) [email protected]

Alex AbdoAMERICAN CIVIL LIBERTIESUNION FOUNDATION125 Broad Street, 18th floorNew York, New York 10004Tel: (212) [email protected]

NYU LAW CHAPTER OF THEAMERICAN CONSTITUTION SOCIETYBurt NeuborneNorman Dorsen Professor of Civil LibertiesFounding Legal Director, Brennan Centerfor Justice40 Washington Square South, 307New York, New York 10012Tel: (212) [email protected]

Amanda B. Bradyof Counsel toNEW YORK STATE ASSOCIATION OFCRIMINAL DEFENSE LAWYERSPost Office Box 509Chester, New York 10918

19

APPENDIX

STATEMENTS OF INTEREST OF AMICI CURIAE

The New York Civil Liberties Union ("NYCLU") is the New York State

affiliate of the American Civil Liberties Union ("ACLU"). Both organizations

are non-profit, non-partisan entities dedicated to the defense and protection of the

civil rights and civil liberties embodied in the Bill of Rights. Among the most

fundamental of rights are the rights of privacy and free expression secured by the

Fourth and First Amendments to the federal Constitution and by Article I, Sections

12 and 8 of the New York State Constitution. The NYCLU and the ACLU have

been involved in efforts to ensure that the right to privacy remains robust in the

face of new technologies (see, e.g., Riley v California, 573 US -, 134 S Ct 2473

[2014] (holding that police may not search a cell phone under the search-incident-

to-arrest exception to the warrant requirement); United States v Jones, 565 US -,

132 S Ct 945 [2012] (holding that attachment ofGPS device to automobile of

criminal suspect in order to track suspect's movements constituted a search under

the Fourth Amendment); People v Weaver, 12 NY3d 433, 445 [2009] (holding that

prolonged use of GPS to monitor person's movement without a warrant violated

State constitutional right to privacy)).

The American Constitution Society at New York University School of

Law ("NYU ACS") is the campus chapter of the American Constitution Society

APPl

for Law and Policy ("ACS") at New York University. Both are legal organizations

committed to using law as a force to improve the lives of all people. Student

members of NYU ACS represent future generations of progressive lawyers and

chose to attend New York University School of Law over its peer institutions

because of the school's commitment to public interest. NYU ACS is a strong

voice in the law school community for the importance of civil liberties and

Constitutional protections. NYU ACS uses social media platforms like Facebook

to promote the organization's educational and policy agendas, both through its own

profile and acting through its individual members and officers. NYU ACS

comprises young law students, each with an active presence on Facebook and other

social media platforms. As law students in an age of technology, NYU ACS has a

strong interest in protecting internet privacy and the right of technology companies

like Facebook to contest warrants it feels violates those rights.

The New York State Association of Criminal Defense Lawyers

("NYSACDL") is a non-partisan entity dedicated to protecting the rights of

criminal defendants through a strong, unified and well-trained criminal defense

bar. Its guiding principle is that vigorous defense is the strongest bulwark against

error and injustice in the criminal justice system. It serves as a leader and partner

in advancing humane criminal justice policy and legislation. Further, NYSACDL

seeks to promote the rights of criminal defendants through the adoption of policy

APP2

positions, targeted concerted action and the submission of amicus briefs on issues

of significance to the fair administration of criminal justice and the protection of

civil liberties. NYSACDL maintains a member emaillistserv and Facebook page,

providing forums for members to exchange ideas and information as well as make

connections with colleagues.

APP3

The NYCLU is a non-profit 50l(c)(4) organization and is the New York

DISCLOSURE STATEMENTS

State affiliate of the ACLU. It has no subsidiaries or affiliates.

The ACLU is a non-profit membership organization; it has no stock and no

parent corporations. The ACLU has state affiliates, which are listed below:

American Civil Liberties Union of AlabamaAmerican Civil Liberties Union of Alabama FoundationAmerican Civil Liberties Union of AlaskaAmerican Civil Liberties Union of Alaska FoundationAmerican Civil Liberties Union of ArizonaACLU Foundation of ArizonaAmerican Civil Liberties Union of Arkansas, Inc.Arkansas Civil Liberties Union Foundation, Inc.American Civil Liberties Union of Northern California, Inc.American Civil Liberties Union Foundation of Northern CaliforniaAmerican Civil Liberties Union of Southern CaliforniaACLU Foundation of Southern CaliforniaAmerican Civil Liberties Union of San Diego & Imperial Counties Inc.ACLU Foundation of San Diego & Imperial Counties, Inc.American Civil Liberties Union of ColoradoAmerican Civil Liberties Union Foundation of Colorado, IncAmerican Civil Liberties Union of ConnecticutAmerican Civil Liberties Union Foundation of ConnecticutAmerican Civil Liberties Union of DelawareACLU Foundation of Delaware, Inc.American Civil Liberties Union of GeorgiaACLU Foundation of Georgia, Inc.American Civil Liberties Union of FloridaACLU Foundation of Florida, Inc.American Civil Liberties Union of HawaiiAmerican Civil Liberties Union of Hawaii FoundationAmerican Civil Liberties Union of IdahoAmerican Civil Liberties Union of Idaho Foundation, Inc.American Civil Liberties Union of IllinoisRoger Baldwin Foundation of ACLU, Inc.

APP4

American Civil Liberties Union of IndianaACLU of Indiana FoundationAmerican Civil Liberties Union of IowaACLU Foundation of IowaAmerican Civil Liberties Union of KansasAmerican Civil Liberties Union Foundation of KansasAmerican Civil Liberties Union of KentuckyAmerican Civil Liberties Union of Kentucky Foundation, Inc.American Civil Liberties Union of Louisiana, Inc.ACLU Foundation of LouisianaAmerican Civil Liberties Union of MaineACLU of Maine FoundationAmerican Civil Liberties Union of MarylandACLU Foundation of Maryland, Inc.American Civil Liberties Union of MassachusettsAmerican Civil Liberties Union Foundation of Massachusetts, IncAmerican Civil Liberties Union of MichiganAmerican Civil Liberties Union Fund of MichiganAmerican Civil Liberties Union of MinnesotaMinnesota Civil Liberties Union FoundationAmerican Civil Liberties Union of MississippiACLU of Mississippi Foundation, Inc.American Civil Liberties Union of Missouri, Inc.American Civil Liberties Union Foundation of MissouriAmerican Civil Liberties Union of MontanaACLU of Montanan FoundationAmerican Civil Liberties Union of the National Capital AreaAmerican Civil Liberties Union Fund of the National Capital AreaAmerican Civil Liberties Union of NebraskaACLU of Nebraska Foundation, Inc.American Civil Liberties Union of Nevada, Inc.American Civil Liberties Union Foundation of Nevada, Inc.New Hampshire Civil Liberties UnionNew Hampshire Civil Liberties Union FoundationAmerican Civil Liberties Union of New JerseyAmerican Civil Liberties Union of New Jersey FoundationAmerican Civil Liberties Union of New MexicoAmerican Civil Liberties Union of New Mexico FoundationNew York Civil Liberties UnionNew York Civil Liberties Union Foundation

APPS

American Civil Liberties Union of North CarolinaACLU ofNC Legal FoundationAmerican Civil Liberties Union of OhioAmerican Civil Liberties Union Foundation of Ohio, Inc.American Civil Liberties Union of OklahomaACLU of Oklahoma Foundation, Inc.American Civil Liberties Union of OregonAmerican Civil Liberties Union Foundation of Oregon, Inc.American Civil Liberties Union of PennsylvaniaAmerican Civil Liberties Union Foundation of PennsylvaniaAmerican Civil Liberties Union of Rhode IslandACLU of Rhode Island Foundation, Inc.American Civil Liberties Union of South CarolinaAmerican Civil Liberties Union of South Carolina Foundation, Inc.American Civil Liberties Union of TennesseeACLU Foundation of TennesseeAmerican Civil Liberties Union of TexasACLU Foundation ofTX, Inc.American Civil Liberties Union of UtahACLU of Utah Foundation, Inc.American Civil Liberties Union of VermontAmerican Civil Liberties Union Foundation of Vermont, Inc.American Civil Liberties Union of VirginiaAmerican Civil Liberties Union Foundation of VirginiaAmerican Civil Liberties Union of WashingtonAmerican Civil Liberties Union of Washington FoundationAmerican Civil Liberties Union of West VirginiaAmerican Civil Liberties Union of West Virginia Foundation, Inc.American Civil Liberties Union of WisconsinAmerican Civil Liberties Union Foundation of Wisconsin, Inc.

The NYU ACS is a student organization at NYU School of Law and is a

campus chapter of the national organization, American Constitution Society for

The NYSACDL is a 50 l (c)6 nonprofit organization and an affiliate of the

Law and Policy.

National Association of Criminal Defense Lawyers.

APP6

EXHIBIT B

1

Exhibit B: List of ACLU Affiliates

American Civil Liberties Union of Alabama

American Civil Liberties Union of Alabama Foundation

American Civil Liberties Union of Alaska

American Civil Liberties Union of Alaska Foundation

American Civil Liberties Union of Arizona

ACLU Foundation of Arizona

American Civil Liberties Union of Arkansas, Inc.

Arkansas Civil Liberties Union Foundation, Inc.

American Civil Liberties Union of Northern California, Inc.

American Civil Liberties Union Foundation of Northern California

American Civil Liberties Union of Southern California

ACLU Foundation of Southern California

American Civil Liberties Union of San Diego & Imperial Counties Inc.

ACLU Foundation of San Diego & Imperial Counties, Inc.

American Civil Liberties Union of Colorado

American Civil Liberties Union Foundation of Colorado, Inc

American Civil Liberties Union of Connecticut

American Civil Liberties Union Foundation of Connecticut

American Civil Liberties Union of Delaware

ACLU Foundation of Delaware, Inc.

American Civil Liberties Union of Georgia

ACLU Foundation of Georgia, Inc.

American Civil Liberties Union of Florida

ACLU Foundation of Florida, Inc.

American Civil Liberties Union of Hawaii

American Civil Liberties Union of Hawaii Foundation

American Civil Liberties Union of Idaho

American Civil Liberties Union of Idaho Foundation, Inc.

American Civil Liberties Union of Illinois

Roger Baldwin Foundation of ACLU, Inc.

American Civil Liberties Union of Indiana

ACLU of Indiana Foundation

American Civil Liberties Union of Iowa

ACLU Foundation of Iowa

American Civil Liberties Union of Kansas

American Civil Liberties Union Foundation of Kansas

American Civil Liberties Union of Kentucky

American Civil Liberties Union of Kentucky Foundation, Inc.

2

American Civil Liberties Union of Louisiana, Inc.

ACLU Foundation of Louisiana

American Civil Liberties Union of Maine

ACLU of Maine Foundation

American Civil Liberties Union of Maryland

ACLU Foundation of Maryland, Inc.

American Civil Liberties Union of Massachusetts

American Civil Liberties Union Foundation of Massachusetts, Inc

American Civil Liberties Union of Michigan

American Civil Liberties Union Fund of Michigan

American Civil Liberties Union of Minnesota

Minnesota Civil Liberties Union Foundation

American Civil Liberties Union of Mississippi

ACLU of Mississippi Foundation, Inc.

American Civil Liberties Union of Missouri, Inc.

American Civil Liberties Union Foundation of Missouri

American Civil Liberties Union of Montana

ACLU of Montanan Foundation

American Civil Liberties Union of the National Capital Area

American Civil Liberties Union Fund of the National Capital Area

American Civil Liberties Union of Nebraska

ACLU of Nebraska Foundation, Inc.

American Civil Liberties Union of Nevada, Inc.

American Civil Liberties Union Foundation of Nevada, Inc.

New Hampshire Civil Liberties Union

New Hampshire Civil Liberties Union Foundation

American Civil Liberties Union of New Jersey

American Civil Liberties Union of New Jersey Foundation

American Civil Liberties Union of New Mexico

American Civil Liberties Union of New Mexico Foundation

New York Civil Liberties Union

New York Civil Liberties Union Foundation

American Civil Liberties Union of North Carolina

ACLU of NC Legal Foundation

American Civil Liberties Union of Ohio

American Civil Liberties Union Foundation of Ohio, Inc.

American Civil Liberties Union of Oklahoma

ACLU of Oklahoma Foundation, Inc.

American Civil Liberties Union of Oregon

American Civil Liberties Union Foundation of Oregon, Inc.

3

American Civil Liberties Union of Pennsylvania

American Civil Liberties Union Foundation of Pennsylvania

American Civil Liberties Union of Rhode Island

ACLU of Rhode Island Foundation, Inc.

American Civil Liberties Union of South Carolina

American Civil Liberties Union of South Carolina Foundation, Inc.

American Civil Liberties Union of Tennessee

ACLU Foundation of Tennessee

American Civil Liberties Union of Texas

ACLU Foundation of TX, Inc.

American Civil Liberties Union of Utah

ACLU of Utah Foundation, Inc.

American Civil Liberties Union of Vermont

American Civil Liberties Union Foundation of Vermont, Inc.

American Civil Liberties Union of Virginia

American Civil Liberties Union Foundation of Virginia

American Civil Liberties Union of Washington

American Civil Liberties Union of Washington Foundation

American Civil Liberties Union of West Virginia

American Civil Liberties Union of West Virginia Foundation, Inc.

American Civil Liberties Union of Wisconsin

American Civil Liberties Union Foundation of Wisconsin, Inc.