DECISION & ORDER The defendant is charged with three counts of Aggravated Harassment in the Second Degree (Penal Law §§240.30 [1] [a], [1] [b], and [2]) in docket number 2018NY014091, and Aggravated Harassment in the Second Degree (Penal Law §240.30 [1] [a]) and Unlawful Disclosure of an Intimate Image (Administrative Code of the City of New York §10-177 [b] [1]) in docket number 2018NY014095. Both complaints were filed on March 17, 2018. Docket number 2018NY014091 alleges that on November 27, 2017, the defendant used a telephone to call the complaining witness (CW), who was pregnant at the time, and told her, “You better have an abortion or I will slit your wrists. I will do you a favor.” Docket number 2018NY014095 charges that on February 13, 2018, the defendant used a telephone to call CW and tell her, “I’m going to make you eat the ground when I see you.” At about the same time, CW discovered that the defendant utilized the defendant’s Instagram account to post naked photos of CW. On March 16, 2018, the court (Chu, J.) issued a search warrant for two Instagram accounts’ records. One was for the count that allegedly belonged to the defendant. The second was created by an unknown person in CW’s name. This second account also displayed CW in the nude.The defendant moved to controvert that search warrant. In particular, she argues that the warrant:(1) lacked probable cause,(2) was overbroad and lacked sufficient particularity,(3) lacked protocols/limitations to minimize the information the police could review,(4) lacked date or time restrictions,(5) was not executed within ten days,(6) was not executed by police officers, and(7) was executed outside New York State.BACKGROUNDThe subject images were (1) intimate pictures created by CW and sent to her boyfriend (MW), by whom she was pregnant, prior to their relationship ending; (2) created by MW when CW gave him permission to take au naturel photographs; and (3) semi-nude pictures taken without her knowledge while she was sleeping. These images appeared on Instagram in two accounts: one allegedly belonging to the defendant (MW’s current girlfriend), and the other in CW’s name, which CW believes was created by the defendant.Instagram is“…a free photo and video sharing app available on Apple iOS, Android and Windows Phone. People can upload photos or videos to [Instagram's] service and share them with their followers or with a select group of friends. They can also view, comment and like posts shared by their friends on Instagram. Anyone 13 and older can create an account by registering an email address and selecting a username” (https://help.instagram.com/424737657584573 [last accessed Sept. 28, 2018]).When a user creates an Instagram account the default setting is that anyone who has access to Instagram can see anything she posts, unless she1 takes affirmative steps to change the account’s privacy setting. Then the user does have the option to limit other Instagram users’ ability to view her posts.2 If that Instagram user uses other social networking sites, such as Twitter or Facebook, the user can also have her posts on Instagram automatically posted to her other social media accounts, and vice-versa. Further, there is nothing that would stop another user from distributing a posted Instagram image either by “regramming”3 it or by taking a screen shot and posting that image on their account.The United States Constitution’s Fourth Amendment (as well as New York Constitution article 1, §12) protects“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”This raises modern day issues that those who in 1791 drafted and ratified the Fourth Amendment did not and could not anticipate. While the term “papers” was used literally, the search warrant here was for intangible electronic media transmitted over the internet and displayed online for others to see. It is unlikely that our Federal and State Constitution framers would have ever conceived of Instagram or other social media. Certainly, the New York State legislature did not anticipate social media in its current form when it added a second paragraph in 1938 to Article I, Section 12, for telephone and telegraph communications:“The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.”Nor are New York’s search warrant procedures (Criminal Procedure Law article 690) designed for electronic media:“Article 690 of the Criminal Procedure Law, New York’s search warrant article, was enacted in 1970. It was not designed for and does not adequately address many of the recurring issues which arise in digital searches. The statute primarily authorizes searches of physical locations for tangible property. Digital searches, like those here, however, are often conducted primarily to uncover information, not property.” (People v. Covlin, 58 Misc 3d 996, 1013 [Sup Ct, NY County 2018]).Instead New York prosecutors generally rely on the federal Electronic Communications Privacy Act (ECPA) of 1986′s Title II (Stored Wire and Electronic Communications and Transactional Records Access, or SCA) (see ECPA, Pub. L. 99–508, tit. II, 100 U.S. Stat. 1860, codified as amended at 18 USC §2701 et seq.):“When enacting the SCA, Congress observed that the ‘law must advance with the technology to ensure the continued vitality of the [F]ourth [A]mendment’ (S. Rep. 99–541, 99th Cong., 2d Sess., reprinted in 1986 U.S.Code Cong. & Admin. News at 3555, 3559). The SCA was, therefore, meant ‘to protect privacy interests in personal and proprietary information’ transmitted through then-emerging computer-based forms of communication, but it was also enacted to strike a ‘balance’ between privacy expectations and protecting ‘the Government’s legitimate law enforcement needs (id. at 3557)’” (Matter of 381 Search Warrants Directed to Facebook, Inc., 29 NY3d 231, 240-241 [2017])The search warrant in question here was issued pursuant to the SCA (18 USC §2703 [b] [1] [A]; [c] [1] [A]), and was addressed to Instagram, not the defendant. It was not executed in her home. The search was not for papers nor computer data stored in her home computer or some personal, portable. Facebook, Instagram’s parent company, received and complied with the warrant.STANDINGTo challenge a search under the Fourth Amendment, the defendant must first address “standing” before the court considers probable cause and the other issues raised by the defendant’s motion. The United States and New York State Constitutions protect a person’s right to be secure from “unreasonable searches and seizures” (US Const amend IV; NY Const art I, §12). A search does not occur “unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable’” (Kyllo v. U.S., 533 US 27, 33 [2001], quoting California v. Ciraolo, 476 US 207 [1986]). Similarly, standing to challenge government action as an unconstitutional search depends on “whether the person…has a legitimate expectation of privacy in the invaded place” (Minnesota v. Carter, 525 US 83, 88 [1998], quoting Rakas v. Illinois, 439 US at 143-144; see People v. Ramirez-Portoreal, 88 NY2d 99, 108 [1996]; People v. Ortiz, 83 NY2d 840, 842 [1994]; People v. Rodriguez, 69 NY2d 159, 163 [1987]). The burden is on the defendant to establish standing by showing a legitimate privacy expectation in the place searched (see Rakas v. Illinois, 439 US at 144; People v. Ramirez-Portoreal, 88 NY2d at 108; People v. Gonzalez, 68 NY2d 950, 951 [1986]; People v. Ponder, 54 NY2d 160, 165 [1981]). A subjectively held privacy expectation is legitimate only if it is “one that society is prepared to recognize as reasonable” (Rakas, 439 US at 143–144, n 12).While “[i]ndividuals generally possess a reasonable expectation of privacy in their home computers” (U.S. v. Lifshitz, 369 F3d 173, 190 [2d Cir 2004]), “this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet” (U.S. v. Meregildo, 883 F Supp 2d 523, 525 [SDNY 2012], citing Lifshitz, 369 F3d at 190). “A central element in determining whether an individual has a reasonable expectation of privacy is the effort made to keep the subject information private” (In re Smartphone Geolocation Data Application, 977 F Supp 2d 129, 146 [EDNY 2013]; U.S. v. Westley, — F Supp 3d —, 2018 WL 3448161 [D Ct 2018]).It is well-settled that what a person seeks to preserve as private may be constitutionally protected; what a person exposes to the public does not get Fourth Amendment protection (Katz v. U.S., 389 US 347, 350 [1967]). Typical search warrants for social media result in two types of data: pictures and other information that the public can see, and data that only Instagram employees can see (internet protocol connection data, photographic metadata, information provided when the account is created, etc.). Although the user is unaware that this data is collected along with their displayed photographs — or more likely, could not care less that this data is collected since they are already sharing their life with the world — the Supreme Court has recently stated that there is a privacy concern for the data that shows a person’s physical movement (Carpenter v. U.S., 585 US —, 138 S Ct 2206 [2018]).The warrant in question was not for something under the defendant’s absolute control. It was for two Instagram accounts’ data, only one known to be the defendant’s account, though it is alleged by CW that the defendant created and controlled both accounts. The search warrant was served on a third party for items where the defendant might have taken no steps to protect her privacy interest. Where social media sites, such as Instagram, allow different privacy settings — from the default setting where anyone can view the user’s profile and posts,4 to making a user’s posts visible only to other approved users5 — courts have held that whether the Fourth Amendment applies to a social media user’s content “depends, inter alia, on the user’s privacy settings” (Meregildo, 883 F Supp 2d at 525 [SD NY 2012] [defendant could not claim a Fourth Amendment violation where he "did not maintain any privacy restrictions on his Facebook account, and his Facebook profile was viewable by any Facebook user"]).The defendant has not provided an affidavit that explains any steps she took to keep her Instagram content private (see U.S. v. Devers, No. 12-CR-50-JHP, 2012 WL 12540235, at *2 [ND Okla 2012] ["[U]nless the defendants can prove that their [F]acebook accounts contained security settings which prevented anyone from accessing their accounts, this court finds their legitimate expectation of privacy ended when they disseminated posts to their ‘friends’ because those ‘friends’ were free to use the information however they wanted — including sharing it with the government.”). Nor has the defendant stated that she created or had any interest in the Instagram account in CW’s name. Because the defendant failed to meet her burden to show a legitimate privacy expectation in these Instagram accounts’ data, the motion to controvert the search warrant is held in abeyance and a hearing ordered. The defendant will need to provide (1) whether the accounts were created or controlled by her, and (2) if so, the privacy settings she maintained for each account.PROBABLE CAUSEFor judicial economy interests, the court will review the defendant’s remaining issues. The defendant also argued that the warrant was not supported by probable cause. Probable cause is a “flexible, common-sense standard” (People v. Batista, 261 AD2d 218 [1st Dept 2014]; quoting Texas v. Brown, 460 US 730, 742 [1983]). It merely requires the reasonable belief “that certain items may be contraband or stolen property or useful as evidence of a crime” (id.). Probable cause is information sufficient to support a reasonable belief that an offense was or is being committed in a particular place (People v. McRay, 51 NY2d 594, 602 [1980]). The court reviewing the warrant is required to give the issuing court “great deference” in determining whether there was probable cause, because warrants issued by a judge are presumed valid (People v. Castillo, 80 NY2d 578, 585 [1992]). The reviewing court must also read the warrant application utilizing common sense and in a realistic manner (see People v. Hanlon, 36 NY2d 549, 559; [1975]; People v. Bigelow, 66 NY2d 417 [1985]). The “Fourth Amendment does not require probable cause to believe evidence will conclusively establish a fact, [but only that it]…will aid in a particular…conviction” (Messerschmidt v. Millender, 565 US 535, 552 n 7 [2012]) (emphasis added).CW was the search warrant’s named informant. She stated to a detective that from February, 2017, to about November, 2017, she was in an intimate relationship with MW. At the time the search warrant application was submitted, CW was pregnant with MW’s child. CW had shared nude photos of herself with MW by sending them via text message. She did not send the pictures to anyone else, nor did she give him permission or authority to share the photographs. During the time they were together, she also allowed MW to take naked pictures of her using his camera phone and a digital camera. These pictures were for his viewing only, and she did not give him permission or authority to share those images with anyone or to post them online.Instagram Account #1. On or about February 13, 2018, CW observed postings on the first target Instagram account (Account #1) depicting six photographs of her face and/or her breasts or buttocks. Five of those pictures she either sent to MW or he took the pictures. She was unaware the sixth picture existed before then, because it captured her sleeping with a breast exposed. She did not give him permission or authority to take or share that picture. The reason the informant knew that Account #1 belonged to the defendant (MW’s current girlfriend) is because she recognized the account’s profile picture, and the defendant had previously messaged her on Instagram using that profile.Instagram Account #2. On or about February 20, 2018, CW observed an Instagram account in her name that she did not create, nor did she give anyone permission or authority to create this account in her name. CW’s picture was used to show she purportedly created Account #2. Eight photographs were posted on this account of her with her breasts and/or buttocks exposed. Seven of those images were taken by MW during their relationship. The eighth image was the same image from Account #1 where she was sleeping with her breast exposed.The facts in the application supported reasonable cause to conclude that MW shared the photos with others, including the person or persons associated with Accounts #1 and #2, and that the accounts’ data contained evidence that crimes were committed and who committed those crimes. Regardless of who owned the accounts, the warrant application contained sufficient probable cause for the court to issue the warrant.PARTICULARITY AND OVERBROADNESSThe defendant claims that the warrant lacked particularity and was overbroad. Specifically, she argues that the warrant violated the Fourth Amendment because it sought seemingly broad and unfettered access to all, or nearly all, the subject Instagram accounts’ content. Should the defendant demonstrate standing, the issues are decided as follows:A. Particularity.The Fourth Amendment’s particularity requirement prohibits “the ‘general warrant’ abhorred by the colonists” and thereby prevent an “exploratory rummaging in a person’s belongings” (Coolidge v. New Hampshire, 403 US 443, 467 [1971]). “The warrant accomplishes the objective of eliminating this evil through the requirement of a ‘particular description of the things to be seen’ thus keeping the search, where it is permitted, ‘as limited as possible’” (People v. Jenkins, 77 AD2d 353, 357 [4th Dept 1980], quoting Coolidge v. New Hampshire, at 467). “To meet the particularity requirement, the warrant must be specific enough to leave no discretion to the police (see People v. Brown, 96 NY2d 80, 84 [2001])” (People v. Cahill, 2 NY3d 14, 41 [2003]).The Second Circuit has listed the particularity requirement’s three components:(1) A warrant must identify the specific offense for which the police have established probable cause,(2) A warrant must describe the place to be searched, and(3) The warrant must specify the items to be seized by their relation to designated crimes.(U.S. v. Galpin, 720 F3d 436, 445-46 [2d Cir 2013]). Recently, several New York State courts have adopted this three-part test (People v. Colvin, 58 Misc 3d 996 [Sup Ct, NY County 2018]; People v. Frederick, 52 Misc 3d 648 [Sup Ct, Kings County 2016]). This requirement ensures “the rational exercise of judgment in selecting what items to seize” (U.S. v. Shi Yan Liu, 239 F3d 138, 140 [2d Cir 2000]; see U.S. v. Westley, supra. “Particularity is required in order that the executing officer can reasonably ascertain and identify the persons or places authorized to be searched and the things authorized to be seized (People v. Nieves, 36 NY2d 396, 401 [1975]). But, the reviewing court “should accord the process proper deference and not defeat search warrants (or discourage law enforcement officials from seeking them) by imposing overly technical requirements or interpreting them incompatibly with common sense” (People v. Cahill, 2 NY3d 14, 41 [2003]).1. Specific Offense.The search warrant and application state that the specific offenses were Unlawful Disclosure of an Intimate Image, Attempted Unlawful Disclosure of an Intimate Image, conspiracies and attempts to commit those crimes, as well as the highly disfavored language “and related crimes” (see People v. Thompson, 51 Misc 3d 693, 704 [Sup Ct, NY County 2016] and the cases cited therein).6 The defense did not raise whether the warrant was overbroad due to this “and related crimes” language.2. Place Description.The warrant specifically describes Instagram Accounts #1 and #2. Therefore, the place to be searched was described.3. Sought Items’ Relation to the Designated Crimes.In the search warrant, specific items the police could seize were listed. These items included associated subscriber information and user contact information; all Internet Protocol (IP) history from February 12, 2018, through the present; all images and related data associated with these accounts; all images and related data associated with the images (including geo-location and EXIF7 data); Instagram users who are following the two subject-accounts; Instagram users who the two subject-accounts’ followed; and any and all associated location information associated with these subject-accounts. These items are described in the warrant as evidence that tended to demonstrate the designated crimes occurred, and that a particular person committed those crimes. The court notes that images seen on Instagram do not provide a user’s actual name, unless the user chooses to do so. IP addresses and metadata (such as geo-location data and EXIF data) may show who uploaded the photograph or from where it was uploaded. Therefore, the warrant specified the items to be seized and their relation to the designated crimes.B. Overbroad.“[A] warrant is overbroad if its ‘description of the objects to be seized … is broader than can be justified by the probable cause upon which the warrant is based.’” (U.S. v. Romain, No. 13-CR-724 (RWS), 2014 WL 6765831, at *7 [SD NY Dec. 1, 2014]).(See also People v. Mothersell, 14 NY3d 358 [2010]; People v. Thompson, 51 Misc 3d 693). The instant search was not just for the pictures and their metadata, but also the information that could identify who posted the pictures as wells as who viewed the pictures. The warrant application explained why this was all relevant to this prosecution. Thus, it was not overbroad.C. Minimization Protocols.The defendant next argues that the court must devise search protocols for the police to use to protect the defendant’s privacy from data over-seizure. This again raises the issue, what privacy expectation is a user afforded for public postings? Many cases the defendant cited deal with searching a computer and/or the hard drive’s contents (see e.g. U.S. v. Payton, 573 F3d 859 [9th Cir 2009]; In the Matter of Appeal of Application for Search Warrant, 193 Vt 51, 71 A3d 1158 [2012]). These cases are distinguishable, because there is privacy and ownership involved in the owner’s home computer and hard drive. Another case cited by the defendant dealt with searches for emails shared with others, and thus had limited privacy (see e.g. U.S. v. Lustyik, 57 F Supp 3d 213 [SDNY 2014]).The defendant also argued that the United States Supreme Court in Riley v. California (571 US —, 134 S Ct 2473 [2014]) settles the question. In Riley, the Court emphasized that a cell phone search “would typically expose to the government far more than the most exhaustive search of a house” (id. at 2491). That is because “…information [contained on a modern cell phone] is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records” (U.S. v. Wurie, 728 F3d 1, 7 [1st Cir 2013]). It is worth repeating that there is clearly a difference between the images taken and stored on a cell phone or a camera, and the images posted on Instagram. A person can create images on a cell phone or camera and decide to leave them there, where only a person who possessed that device could see them subject to any password protection. Photographs created on an electronic device and then subsequently and purposely posted to a social media site for literally the entire world to see are different. Further, when a user voluntarily posts images on a social media site, they are uploading much more than that image. First, they are posting it as a user registered with the social media website. This means that the social media website may already know who that user’s identity (their name, their email address, the location from where the item was sent, and possibly even the device used to create the picture). Second, the image they post is not simply a picture printed on paper. Digital images may contain metadata (e.g., the device used to capture the image, the location where the image was captured, and software used to edit the image). In other words, if they had printed the picture on a sandwich board and strolled around Times Square wearing it they would have given up less private information than by posting it on Instagram.Once a court issues a search warrant for a social media account none of these factors require the court to instruct the police how to execute the warrant (Dalia v. U.S., 441 US 238, 258 [1979]; see also U.S. v. Grubbs, 547 US 90, 97-98 [2006]).“This is especially true with respect to searches of the contents of computers, cellphones and other electronic devices, where courts have developed a flexible approach with respect to the execution of search warrants. Rather than require law enforcement to utilize specific search protocols or minimization undertakings as basic predicates for upholding digital search warrants, many court have afforded law enforcement leeway in searching computers for incriminating evidence within the scope of materials specified in the warrant. This is so because there is no way for law enforcement to know in advance how a criminal may label or code his computer files and/or documents which contain evidence of criminal activities. Therefore, to follow defendant’s invitation and to require courts in advance to restrict the computer search to certain methodologies or terms would give criminal the ability to evade law enforcement scrutiny by utilizing coded terms in their files or documents, or placing such documents in areas of the computer that would not normally contain such files/documents. Thus, by necessity government efforts to locate particular files will require examining many other files to exclude the possibility that the sought after data are concealed there” (People v. English, 52 Misc 3d 318 [Sup Ct, Bronx County 2016]) (internal citations omitted).The reasoning in English applies to police searching social media data — although, as discussed above and in the cases cited throughout this opinion, social media has a lesser privacy concern than a person’s home-computer hard drive or cell phone. This is because each individual social media company likely differs in how it stores data, what data it stores, and how it provides the data to law enforcement. There is no way for law enforcement to know ahead of time how Instagram, Facebook, or any other social media company currently stores its data, or if they have made any recent internal changes in how the data is stored or provided. Because this technology changes so rapidly, the flexible approach espoused in English and the cases it cited is still required.D. Date and Time Restrictions.The defendant argues that there were no time restrictions placed on the search warrant. CW and MW had an intimate relation between February, 2017, to November, 2017. The online photographs were discovered on February 13, 2018. The warrant did not restrict the search’s time scope, save for the accounts’ IP history from February 12, 2018, through March 16, 2018. But, the inquiry does not end there: if there were no images and associated data recovered from before February, 2017, or IP history data beyond February, 12, 2018, through March 16, 2018, then no harm occurred. Unfortunately, the People’s response did not disclose any information about what was recovered from Instagram. On or before October 11, 2018, the People are to provide the court and the defendant with a digital copy of everything that was seized when the subject warrant was executed.E. Execution Within Ten DaysThe defendant avers that the warrant was not executed within ten days from when the warrant was issued (CPL 690.30 [1]). The People’s answer does not inform the court when the warrant was executed. A hearing is ordered to determine when the warrant was executed.F. Execution by Police Officers.The defendant argues that the warrant was not executed by NYPD officers (CPL 690.25 [1]), and there is no provision in CPL article 690 that allows a private citizen to execute a search warrant.Although the People did not disclose what a police officer did to “execute” the warrant, the data was subsequently collected and sent to the police by Instagram or Facebook employees. The SCA’s express language sets out that,“[T]he presence of an officer shall not be required for service or execution of a search warrant issued in accordance with this chapter requiring disclosure by a provider of electronic communications service or remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service” (18 USC §2703 [g]).The defendant claims the SCA does not apply, and even if it did, the SCA cannot override state law.First, as noted above, the SCA does apply. Second, while defense is correct that the SCA requires the warrant to be “issued using State warrant procedures” (18 USC §2703 [a]) (emphasis added), it does not state that it must be executed using State warrant procedures. CPL article 690 provides the statutory structure for issuance and execution of search warrants. The Court of Appeals has already addressed this issue, and the Court approved Facebook employees “executing” the warrants for the simple fact that “the framework of execution for SCA warrants ensure efficiency and minimizes intrusion into the provider’s business while promoting and protecting legitimate law enforcement interests in criminal investigation” (Facebook, 29 NY3d at 231).Because the People did not disclose how a police officer executed the warrant, that issue will also be addressed at the hearing.G. Warrant Executed Outside New York StateThe defendant argues that the search warrant was executed outside of New York State, and CPL 690.20 (1) requires that the police execute a search warrant issued by a criminal court judge within New York State. The defendant claims that the warrant was executed in Menlo Park, California, because that is where Instagram’s main office was located.While Instagram is owned by Facebook, Inc.,8 which has its headquarters in Menlo Park, California, it also has a large engineering office in New York City.9 Moreover, Facebook maintain a website specifically set up for law enforcement to serve preservation requests, subpoenas, court orders, and search warrants (www.facebook.com/records), which is presumably accessible from any law enforcement computer located in New York City. Certainly in the SCA context, a search warrant can be executed by uploading it to this website. A careful prosecutor might also serve the warrant in person at Facebook’s New York City office. And, the Court of Appeals recently approved warrants executed by the New York County District Attorney’s Office on Facebook utilizing the SCA (Facebook, 29 NY3d 231), although that case did not deal with where the search warrant was executed.The People’s response did not inform the court whether the warrant was uploaded to Facebook on a computer located in New York, served on Facebook’s New York offices, flown to California for personal service at Facebook’s headquarters, or executed in some other fashion. This will also be addressed at the hearing.CONCLUSIONThere was sufficient probable cause for the court to issue the warrants for Instagram Accounts #1 and #2. The court will hold a hearing at which the defendant will first have to establish standing. If the defendant meets that burden, the People will then have to show: (1) who executed the warrants, where it was executed, and when it was executed, and (2) what was recovered and whether the court must suppress any data recovered outside the probable cause confines for date and time.Both sides should be prepared to proceed on these hearings on October 11, 2018.Dated: October 2, 2018New York, New York
