Caveat Vendor

Social Media Site Posts Safe from Criminal Defendants’ Pre-Trial Subpoenas, Says a California Appellate Court

September 16, 2015

Mary-Elizabeth M. Hadley

In a decision last week, a California appeals court directed the trial court to quash Defendants’ subpoenas for public and private content from the Facebook, Instagram and Twitter accounts of the murder victim and a witness, rejecting the argument that the Stored Communication Act (“SCA”) violated Defendants’ constitutional rights.
Procedural Background
Defendants were indicted and are awaiting trial on murder, weapons and gang-related charges in connection with a drive-by shooting.  Prosecutors presented evidence to the grand jury that the Defendants were gang members who had engaged in “cyber banging” on the internet, i.e., disrespecting rival gang members such as the victim on social media sites.  Each of the Defendants served a subpoena duces tecum on one or more social media companies seeking, among other things, user information, associated email addresses, photos, private messages, location data and comments from the murder victim’s and a witness’ accounts.  The affected social media companies moved to quash the subpoenas, challenging the compelled disclosure of the content of their users’ electronic communications under the SCA.  Defendants opposed, arguing the SCA is unconstitutional to the extent it precludes access by a criminal defendant to information potentially material to his or her defense.
Statutory Framework
The SCA (18 U.S.C. § 2701 et seq.), a topic of frequent focus here at Caveat Vendor, governs when electronic communications services can divulge the contents of stored user communications.  Within the criminal context, the SCA provides for disclosure to a governmental entity pursuant to a search warrant or, under certain circumstances, through a grand jury subpoena or court order.  The SCA does not, however, provide criminal defendants any direct mechanism for accessing private communication content.
The Decision
The California appellate court rejected Defendants’ challenge to the SCA’s constitutionality.  According to the court:

The consistent and clear teaching of both United States Supreme Court and California Supreme Court jurisprudence is that a criminal defendant’s right to pretrial discovery is limited, and lacks any solid constitutional foundation.  Simply alleging that the material they seek might be helpful to their defense does not meet Defendants’ burden to show that the SCA is unconstitutional in denying them access to protected information at this stage of the proceedings.

Facebook, Inc. v. The Superior Court of San Francisco City and County, No. A144315, 22-23 (Cal. Ct. App. Sept. 8, 2015) (emphasis in original).  In reaching this conclusion, the unanimous three judge panel emphasized that the Defendants’ asserted Sixth Amendment right of confrontation was a trial right and the Fifth Amendment’s Due Process Clause “has little to say regarding the amount of discovery which the parties must be afforded.”  Id. at 12, 17 (internal citations and quotation marks omitted).
Significant to the court was the fact that Defendants were not wholly precluded from obtaining at least some of the information they sought, as the prosecution had obtained some of the victim’s social media communications pursuant to a search warrant and would be obligated to share copies with Defendants either as general criminal discovery or as potentially exculpatory Brady material.  The panel was not persuaded by the Defendants’ argument “that access only to records that tend to support the prosecution’s theory of the case does not provide them with the complete materials necessary to present a full defense.”  Id. at 19.  Although recognizing that the subpoena would “not entitle the person on whose behalf it is issued to obtain access to the subpoenaed records until a judicial determination has been made that the person is legally entitled to receive them,” in the court’s view:

The difficulty presented in the pretrial setting…is that no prior notice is required to the individual whose records are subpoenaed and the existence of the responsive documents may not even be disclosed to the prosecution.  Such a nonadversarial ex parte process is ill-suited to adjudication of contested issues of privilege. … Absent response by the service provider, as here, the court may not even be cognizant of objections to production, and of the level of in camera scrutiny required.

Id. at 20-21. (internal citations and quotation marks omitted).  Furthermore, the court viewed as “anomalous” a result that would permit criminal defendants to access third party confidential information via an ex parte subpoena with no required notice to the subscriber or prosecutor while “a governmental entity would have to obtain a search warrant…or provide notice to the subscriber in order for an administrative or trial subpoena to issue.”  Id. at 22.
Potential for Future Challenge
Notably, the court left open the possibility that the Defendants could seek to compel the production of the data again at trial, emphasizing that it viewed the trial judge as much better positioned to weigh defendants’ constitutional rights and the policies underlying the SCA.  

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