Inthematterofthemotiont

COURT OF APPEALS STATE OF NEW YORK

IN RE:381 SEARCHWARRANTSDIRECTEDTO : FACEBOOKINC.AND DATEDJULY23,2013, NOTICE OF MOTION FOR LEAVE TO APPEAR AS AMICI CURIAE ON IN THEMATTEROFTHEMOTIONTOCOMPEL APPELLANT'S MOTION DISCLOSUREOFTHESUPPORTINGAFFIDAVIT: FOR LEAVE TO APPEAL RELATINGTOCERTAINSEARCHWARRANTS (New York County Clerk DIRECTEDTo FACEBOOK,INC.DATED Index Nos. 30207/13, JULY23,2013 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 NYU LAW CHAPTER OF THE Arthur Eisenberg AMERICAN CONSTITUTION SOCIETY NEW YORK CIVIL LIBERTIES Burt Neuborne UNION FOUNDATION Norman Dorsen Professor of Civil Liberties 125 Broad Street, 19th floor Founding Legal Director, Brennan Center New York, New York 10004 for Justice Tel: (212) 607-3300 40 Washington Square South, 307 Fax: (212) 607-3318 New York, New York 10012 [email protected] Tel: (212) 998-6172 [email protected] Alex Abdo AMERICAN CIVIL LIBERTIES Amanda B. Brady UNION FOUNDATION of Counsel to 125 Broad Street, 18th floor NEW YORK STATE ASSOCIATION OF New York, New York 10004 CRIMINAL DEFENSELA WYERS Tel: (212) 549-2500 Post Office Box 509 [email protected] 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 (New York County Clerk DIRECTEDTo FACEBOOK,INC.DATED Index Nos. 30207/13,- JULY23,2013 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

New 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. 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

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. 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,

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. 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

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 New 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

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, -against-

NEW 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 LAWYERS

ALEXABDO MARIKO HIROSE AMERICAN CIVIL LIBERTIES ARTI-IUR EISENBERG UNION FOUNDATION NEW YORI( CIVIL LIBERTIES UNION 125 Broad Street, is" Floor FOUNDATION New York, New York 10004 125 Broad Street, 19th Floor Telephone: (212) 549-2500 New York, New York 10004 [email protected] Telephone: (212) 607-3300 Facsimile: (212) 607-3318 [email protected]

Counsel for amici curiae Dated: October 23, 2015 (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. BRADY OF COUNSEL TO NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LA WYERS Post Office Box 509 Chester, New York 10918 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 PRE- ENFORCEMENT 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 17 CONCLUSION 19 APPENDIX 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] 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 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_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 on Benefits, NY Times, http://www.nytimes.com/2014/08/22/ nyregion/judge-drops-chargesfor-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 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-networking- fact-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] 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 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.

5 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.

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 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, 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]. 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 14/1O/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

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.

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 PRE- ENFORCEMENT 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

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-

16 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. ")).

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 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 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

17 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.

12 website hosts may, under the principle ofjus 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).

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-chargesfor- 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 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").)

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 OF THE WARRANTS IS NOT MOOT.

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.

20 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.

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 NYU LAW CHAPTER OF THE NEW YORK CIVIL LIBERTIES AMERICAN CONSTITUTION SOCIETY UNION FOUNDATION Burt Neuborne 125 Broad Street, 19th floor Norman Dorsen Professor of Civil Liberties New York, New York 10004 Founding Legal Director, Brennan Center Tel: (212) 607-3300 for Justice Fax: (212) 607-3318 40 Washington Square South, 307 [email protected] New York, New York 10012 Tel: (212) 998-6172 Alex Abdo [email protected] AMERICAN CIVIL LIBERTIES UNION FOUNDATION Amanda B. Brady 125 Broad Street, 18th floor of Counsel to New York, New York 10004 NEW YORK STATE ASSOCIATION OF Tel: (212) 549-2500 CRIMINAL DEFENSE LAWYERS [email protected] 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-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

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

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.