“We’re disappointed by the court’s ruling, but we are encouraged to see the thorough dissent that supports Facebook’s position arguing for people’s online privacy,” Facebook said in a statement. “We are grateful to the many organizations that joined us in challenging these overbroad warrants, and we are continuing to evaluate our options because we believe strongly in the issues underlying this case.”
A key issue before the appeals court was whether the order served on Facebook for customer information should be treated as a warrant, largely associated with criminal procedures and with search and seizures by law enforcement, or as a subpoena, which requires the service provider to provide the information.
Facebook asked the appeals court to treat the Supreme Court's first order denying its motion to quash the warrants as an appealable order denying a motion to quash subpoenas, but Judge Stein found the argument “unpersuasive.”
Dissenting Judge Rowan Wilson wrote that a warrant under the SCA operates more like a subpoena than like traditional search warrants, as it compels third parties like Facebook, who are not the targets of the investigation, to put in resources for producing the documents.
Section 2703 (d) of the SCA gives service providers standing to move a court to modify or quash an order, "if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider."
“Compelling a company to disclose the private information of its customers may tarnish its brand or alienate its current or future users, which could constitute an undue burden when evaluated against the scope of the request and its potential benefit to the prosecutor,” wrote dissenting Judge Wilson. But the majority opinion was that the move to modify the order would have to be in the same court that issued the order, without specifying an express right to appeal.
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