NYCLU Motion - New York Civil Liberties Union

COURT OF APPEALS
STATE OF NEW YORK
IN RE: 381 SEARCHWARRANTSDIRECTEDTO :
FACEBOOKINC. AND DATEDJULY23,2013,
IN THEMATTEROFTHEMOTIONTOCOMPEL
DISCLOSUREOFTHESUPPORTINGAFFIDAVIT:
RELATINGTOCERTAINSEARCHWARRANTS
DIRECTEDTo FACEBOOK,INC.DATED
JULY23,2013
NOTICE OF MOTION FOR
LEAVE TO APPEAR AS
AMICI CURIAE ON
APPELLANT'S MOTION
FOR LEAVE TO APPEAL
(New York County Clerk
Index Nos. 30207/13,
30178/14)
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 23,2015
New York, N.Y.
Respectfully submitted,
-/II~/a;~
Mariko Hirose
Arthur Eisenberg
NEW YORK CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 19th floor
New York, New York 10004
Tel: (212) 607-3300
Fax: (212) 607-3318
[email protected]
Alex Abdo
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th floor
New York, New York 10004
Tel: (212) 549-2500
[email protected]
NYU LA W CHAPTER OF THE
AMERICAN CONSTITUTION SOCIETY
Burt Neuborne
Norman Dorsen Professor of Civil Liberties
Founding Legal Director, Brennan Center
for Justice
40 Washington Square South, 307
New York, New York 10012
Tel: (212) 998-6172
[email protected]
Amanda B. Brady
of Counsel to
NEW YORK STATE ASSOCIATION OF
CRIMINAL DEFENSELA WYERS
Post Office Box 509
Chester, New York 10918
Counsel for Proposed Amici Curiae
2
To:
Clerk of the Court
New York State Court of Appeals
20 Eagle Street
Albany, New York 12207
BENJAMIN E. ROSENBERG
CYRUS R. VANCE, JR.
Office of the New York County
District Attorney
One Hogan Place
New York, New York 10013
Telephone: (212) 335-9000
Facsimile: (212) 335-9288
Attorney for Respondent
ORIN SNYDER
ALEXANDER H. SOUTHWELL
THOMAS H. DUPREE. JR.
GABRIEL K. GILLETT
Gibson, Dunn & Crutcher, LLP
200 Park Avenue, 47th Floor
New York, New York 10166
Telephone: (212) 351-4000
Facsimile: (212) 716-0858
Attorney for Appellant
3
COURT OF APPEALS
STATE OF NEW YORK
INRE: 381 SEARCHWARRANTSDIRECTEDTO :
FACEBOOKINC. AND DATEDJULY23,2013,
IN THEMATTEROFTHEMOTIONTOCOMPEL
DISCLOSUREOFTHESUPPORTINGAFFIDAVIT:
RELATINGTOCERTAINSEARCHWARRANTS
DIRECTEDTo FACEBOOK,INC.DATED
JULY23,2013
(New York County Clerk
Index Nos. 30207/13,30178/14)
AFFIRMATION OF MARIKO HIROSE IN SUPPORT OF MOTION FOR
LEAVE TO APPEAR AS AMICI CURIAE
MARIKO HIROSE, an attorney admitted to practice law in the courts of
N ew York, affirms the following to be true under penalty of perjury:
1.
I am an attorney for the New York Civil Liberties Union ("NYCLU"),
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
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
3
against error and injustice in the criminal justice system. It serves as a leader and
partner in advancing humane criminal justice policy and legislation.
NYSACDL
Further,
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
4
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.
or All Writs Act orders-the
For the latter types of orders-like
subpoenas
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,
5
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.
Practice
The proposed brief satisfies the criteria of this Court's Rule of
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 crosssection 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
subsidiaries or affiliates.
501 (c)(4) organization
and does not have
The NYCLU is the New York State affiliate of the
ACLU.
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.
6
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 23,2015
New York, NY
MARIKO HIROSE
New York Civil Liberties Union Foundation
125 Broad Street, 19th Floor
N ew York, NY 10004
Telephone: (212) 607-3300
Facsimile: (212) 607-3318
7
EXHIBIT A
New York County Clerk's Index Nos. 30207/13, 30178/14
<tourt of ~ppcal% of tbc
~tatc of ~cbJ ~ork
IN RE: 381 SEARCH WARRANTS DIRECTED TO FACEBOOK INC. AND DATED
JULY 23,2013
IN THE MATTER OF THE MOTION TO COMPEL DISCLOSURE OF THE SUPPORTING
AFFIDAVIT RELATING TO CERTAIN SEARCH WARRANTS DIRECTED TO FACEBOOK,
INC., DATED JULY 23,2013
FACEBOOK, INC.,
Appellant,
-againstNEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE,
Respondent,
BRIEF OF 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 LA WYERS
ALEXABDO
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street,
Floor
New York, New York 10004
Telephone:
(212) 549-2500
[email protected]
is"
Dated:
October
23, 2015
MARIKO HIROSE
ARTI-IUR EISENBERG
NEW YORI( CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 19th Floor
New York, New York 10004
Telephone:
(212) 607-3300
Facsimile: (212) 607-3318
[email protected]
Counsel for amici curiae
(Continued on next page)
NYU LAW
CHAPTER OF THE AMERICAN
CONSTITUTION
SOCIETY
BURT NEUBORNE
Norman Dorsen Professor of Civil Liberties
Founding Legal Director, Brennan Center for Justice
40 Washington Square South, 307
New York, New York 10012
Tel: (212) 998-6172
[email protected]
AMANDAB.
OF COUNSEL
BRADY
TO
NEW YORK STATE ASSOCIATION
Post Office Box 509
Chester, New York 10918
OF CRIMINAL DEFENSE LA WYERS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
ii
PRELIMINARY STATEMENT
1
ARGUMENT
4
I.
THIS CASE RAISES IMPORTANT AND RECURRING ISSUES THAT
AFFECT THE DIGITAL PRIVACY RIGHTS OF ALL NEW YORIŒRS. 4
II. THE DECISION BELOW CONFLICTS WITH DECISIONS OF OTHER
COURTS THAT PERMIT COMPANIES TO RAISE PREENFORCEMENT CONSTITUTIONAL CHALLENGES TO ORDERS TO
TURN OVER CUSTOMER DATA
8
A. Third Parties Served With Stored Communications Act Warrants Have
The Right to Move to Quash the Warrants
8
B. Third Parties May Move to Quash Stored Communications Act Warrants
Based on the Constitutional Rights of their Customers
12
III. THE DISPUTE OVER THE CONSTITUTIONALITY OF THE
WARRANTS IS NOT MOOT
CONCLUSION
APPENDIX
17
19
APP1
STATEMENTS OF INTEREST OF AMICI CURIAE
APP1
DISCLOSURE 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-Progress
Trace of Wire Communications Over Tel. Facilities,
616 F2d 1122 [9th Cir 1980]
11
Application af U S. af Am. for Order Authorizing Installation af Pen
Register or Touch-Tone Decoder & Terminating Trap,
610 F2d 1148 [3d Cir 1979]
Berger v New York,
388 US 41 [1967]
9, 11
7
Church of Sci entology of Cal. v United States,
506 US 9 [1992]
Craig v Boren,
429 US 190 [1976]
18
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 Search
Warrant Issued by This Court,
2015 WL 5920207 [ED NY, Oct. 9,2015, 15 Misc. 1902 (JO)]
12
In re Subpoena Duces Tecum to Am. Online, Inc.,
52 Va Cir 26,2000 WL 1210372 [2000]
13
ii
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
Matrixx Initiatives, Inc. v Doe,
138 Cal App 4th 872 [Cal Ct of Appea12006]
13
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 the
United 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
Missouri v Frye,
566 US -,143 S Ct 1399 [2012]
16
N. Y County Lawyers' Assn. v State,
294 AD2d 69 [1st Dep't 2002]
14, 15, 16
People v Baret,
23 NY3d 777 [2014]
16
People v Johnson,
103 AD2d 754 [2d Dept 1984]
11
111
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 Galpin,
720 F3d 436 [2d Cir 2013]
7
United States v New York Tel. Co.,
434 US 159 [1977]
11
United States v Warshak,
631 F3d266 [6thCir2010]
10
RULES, REGULATIONS AND STATUTES
18USC§2703
1,3
28 USC § 1651
11
CPL 690.25 [2]
9
IV
MISCELLANEOUS
Aaron Smith, Pew Research Center, Cell Phones, Social Media and
Campaign 2014, http://www.pewinternet.org/files/20 14/1O/PI_
CellPhonesSocialMediaCampaign20 14_11 0314.pdf [Nov. 3, 2014]
6
Amanda Lenhart et aI., Pew Research Center, Teens, Technology &
Friendships, http://www.pewinternet.org/files/20 15/08/Teens-andFriendships- 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 on
Benefits, 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- FINDRAFT-071515.pdf [July 16,2015]
6
Maeve Duggan, Pew Research Center, Mobile Messaging and
Social Media 2015, http://www.pewintemet.org/files/2015/08/
Social-Media-Update-2015-FINAL2.pdf [Aug. 19,2015]
2, 5
Pew Research Center, Social Networking Fact Sheet,
http://www .pewinternet.org/fact-sheets/ social-networkingfact-sheet! [last visited Oct. 22, 2015]
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]
vi
6
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 the
digital age. The statements of interests of amici curiae, as well as their disclosure statements, are
attached 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 Appellant
Facebook, 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 to
18 usc § 2703(b), this court orders Facebook not to notify or otherwise disclose the existence or
execution of this warrant/order to any associated user/account holder, since such disclosure could
cause individuals to flee, destroy evidence, or otherwise interfere with an ongoing criminal
investigation.") ).
1
in the position to do at the time: stand up for the constitutional rights of its users by
moving to quash the warrants.
The amici supplement Facebook's motion with three reasons why this Court
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
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
electronic searches and seizures.
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
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 ISSUES
THAT AFFECT THE DIGITAL PRIVACY RIGHTS OF ALL NEW
YORKERS.
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.
The case also raises important questions about (1) whether an indefinite gag order that prohibits
companies from informing their customers of the seizure of their private data complies with the
First Amendment and (2) how long the government may keep secret the applications that served
as the basis for the warrants. (See Facebook Appeal Mern. at 1-2.) Although amici do not
address these issues in this brief, amici urge the Court to decide these questions, which the
Appellate Division incorrectly failed to do.
5
4
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 Facebookthe 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 predigital 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
Pew Research Center, Social Networking Fact Sheet, http://www.pewinternet.org/factsheets/social-networking-fact-sheet/
[last visited Oct. 22,2015].
7 Mobile Messaging and Social Media 2015, supra n. 4, at 3; Amanda Lenhart, Teens, Social
Media & 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].
6
5
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."!'
The trove of private electronic communications generated on social media
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 or
Instagram"); 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 during
challenging times"); id. at 27 ("[s]ocial media is also an important digital channel through which
teens 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 14/1 O/PI_CellPhonesSocialMediaCampaign20 14_110314. pd
f [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
reporting periods.'? New York was the origin of315 of the requests to Twitter in
2015, more than any other state."
Despite these frequent law enforcement demands for social media
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
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 v New 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
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.
13
7
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 v P.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 OF
OTHER COURTS THAT PERMIT COMPANIES TO RAISE PREENFORCEMENT CONSTITUTIONAL CHALLENGES TO ORDERS
TO TURN OVER CUSTOMER DATA.
A.
Third Parties Served With Stored Communications Act Warrants
Have The Right to Move to Quash the Warrants.
In holding that Facebook could not challenge the SCA warrants before
turning over its customers' data, the Appellate Division erroneously ignored a key
8
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
1979] (explaining that Federal Rules of Criminal Procedure "den[y] ordinary
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 with
Facebook's motion for leave to appeal.
9
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)."
This is not "a distinction without a difference," as the lower court held (Slip
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-
The fact that the SCA warrants are similar to subpoenas in certain respects does not mean that
the same substantive standard should govern their issuance. The substantive standard for the
production of information as sensitive as that at issue here is governed by the Fourth
Amendment, and thus the DA was correct to apply for a warrant to obtain it (see e.g. United
States v Warshak, 631 F3d 266,288 [6th Cir 2010] ("The government may not compel a
commercial [Internet service provider] to turn over the contents of a subscriber's emails without
first obtaining a warrant based on probable cause. ")).
16
10
City Assoc. v Doe, 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 v New 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 InProgress Trace of Wire Communications Over Tel. Facilities, 616 F2d 1122, 11321133 [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
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).
The court below therefore erred in subjecting the SCA warrants at issue here
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.
B.
Third Parties May Move to Quash Stored Communications Act
Warrants Based on the Constitutional Rights of their Customers.
The Appellate Division further erred in holding that the customers' privacy
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
The lower court's decision holding that the SCA did not provide for such an opportunity was
therefore erroneous (see Slip Op at 21-22). To avoid constitutional problems, this Court should
interpret the SCA to allow for pre-execution challenges.
17
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 v Pocono 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. v Doe (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 v Boren, 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
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).
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-onbenefits.html [Aug. 21,2014].
19 It is also an illusion that every criminal case will reach a point where a motion to suppress is
filed. It is likely that most of the prosecutions related to this case will conclude with plea
bargains 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 v
Baret, 23 NY3d 777,800 [2014] (recognizing "the sheer volume of prosecutions disposed of by
guilty plea").)
18
16
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
WARRANTS IS NOT MOOT.
OF THE
In opposing this Court's review, the Manhattan DA presses this Court to
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
because the DA still possesses vast quantities of sensitive information belonging to
Facebook's users and, as far as the amici are aware, has not made any commitment
to destroy or return that information (see id. at 311-312 ("In this case, the rights of
the parties remain undetermined because the membership lists ... remain under the
17
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
adjudication of this case-an
order that the government return the information and
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. v Does 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.
The cases from this Court cited by the DA to argue for mootness (Brief ofDA at 8-9) both
predate Matter of Grand Jury Subpoenas (72 NY2d 307), and in any event one case, Matter of
Brunswick Hospital v Hynes (52 NY2d 333,339 [1981]), does not discuss mootness as in that
case the motion to quash itself was filed after compliance with the subpoena. The other lower
court decisions cited by the DA also do not discuss the exception set forth in the Matter of Grand
Jury Subpoenas.
20
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 Eisenberg
NEW YORK CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 19th floor
New York, New York 10004
Tel: (212) 607-3300
Fax: (212) 607-3318
[email protected]
Alex Abdo
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 18th floor
New York, New York 10004
Tel: (212) 549-2500
[email protected]
NYU LAW CHAPTER OF THE
AMERICAN CONSTITUTION SOCIETY
Burt Neuborne
Norman Dorsen Professor of Civil Liberties
Founding Legal Director, Brennan Center
for Justice
40 Washington Square South, 307
New York, New York 10012
Tel: (212) 998-6172
[email protected]
Amanda B. Brady
of Counsel to
NEW YORK STATE ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS
Post Office Box 509
Chester, 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-incidentto-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
DISCLOSURE STATEMENTS
The NYCLU is a non-profit 50l(c)(4) organization and is the New York
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 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.
APP4
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.
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
APPS
American Civil Liberties Union of North Carolina
ACLU ofNC 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.
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 ofTX, 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.
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
Law and Policy.
The NYSACDL is a 50 l (c)6 nonprofit organization and an affiliate of the
National Association of Criminal Defense Lawyers.
APP6
EXHIBIT B
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.
1
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.
2
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.
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