In Facebook, Inc. v. Superior Court of the City and County of San Francisco, a California Court of Appeal emphasizes the importance of exhausting your options before invoking the Constitution
We have discussed before some litigants’ attempts to obtain non-public social media materials by subpoenaing those materials directly from the social media service providers. Unfortunately for the requesting parties, those attempts have run up against Title II of the Electronic Communications Privacy Act of 1986 (Pub. L. 99-508, Oct. 21, 1986), which is also known as the Stored Communications Act (SCA). The SCA establishes certain privacy protections for our electronic materials stored with third party service providers.
Our previous discussions have covered Crispin and Ehling, in the civil context:
As well as Hunter and Wint, in the criminal context:
More recently, this issue has arisen again in the case of Facebook, Inc. v. Superior Court of the City and County of San Francisco, No. A157143 (Cal. Ct. App. Feb. 13, 2020), which is a continuation of the same underlying criminal matter as Facebook, Inc. v. Hunter above.
In the May 2018 decision in Hunter, the California Supreme Court held that service providers must comply with subpoenas from criminal defendants for public materials, but it did not resolve the larger question of when criminal defendants’ rights under the Fifth and Sixth Amendments might trump the SCA and entitle them to obtain private social media materials via service provider subpoena. Instead, the case was remanded for further development of the record consistent with the court’s decision:
Consequently, at this point it is not apparent that the court had sufficient information by which to assess defendants’ need for disclosure from providers when it denied the motions to quash and allowed discovery on a novel constitutional theory. In any event, because the record is undeveloped, we do not know whether any sought communication falls into either the public or restricted category — or if any initially public post was thereafter reconfigured as restricted or deleted.
In light of our interpretation of the Act, it is possible that the trial court on remand might find that providers are obligated to comply with the subpoenas at least in part. Accordingly, although we cannot know how significant any sought communication might be in relation to the defense, it is possible that any resulting disclosure may be sufficient to satisfy defendants’ interest in obtaining adequate pretrial access to additional electronic communications that are needed for their defense. For these reasons, we will not reach or resolve defendants’ constitutional claims at this juncture. Instead, we conclude that a remand to the trial court is appropriate. [emphasis added]
On remand, the motions to quash the service provider subpoenas were renewed, and the judge ruled “that the Act prohibited pretrial disclosure of private communications” but also “rejected the providers’ argument that defendants could not subpoena public content from third parties unless there was no other way to obtain it,” following the California Supreme Court’s decision allowing for the subpoena of public materials.
Later, the conflict over the ability to subpoena private content was renewed, with the defendant “contending that, now that the case was in a trial posture, his federal due process rights prevailed over users’ privacy rights.” At this point in the proceedings, the judge “denied the providers’ motions to quash and ordered them to produce responsive private communications to the court for in camera review,” explaining “that defendants’ Sixth Amendment and due process rights were ‘very important’ and that he was unaware of any viable alternatives . . .” [emphasis added]. The providers then filed a petition for writ of mandate with the Court of Appeal, which stayed the production order pending its review.
The Court of Appeal again avoided the constitutional questions raised by the defendant by emphasizing his (and the trial court’s) failure to first explore potential alternative sources of the required materials:
We need not reach the constitutional arguments. We agree with providers that the May 1 order should be vacated “for the same reasons that the [Hunter II court] remanded this case in 2018.” Defendants have not yet presented a ripe conflict between the federal Constitution and the Act. Because it did not adequately consider the appropriate factors, including alternatives that would avoid a constitutional conflict, the trial court abused its discretion when it found good cause to issue the May 1 order. [emphasis added; internal citations omitted]
In reaching this conclusion, the court emphasized a seven-factor test that should have been applied by the trial court to help determine whether or not to order the in camera review. The factors in that test are:
In applying the multi-factor analysis, the court considered a number of potential avenues the defendant and the trial court could have explored to obtain the desired materials without using the Constitution to trump the SCA:
Because these avenues had not been exhausted, and because the appropriate factors had not been adequately considered, the Court of Appeal vacated the trial court’s order directing the production of private materials for in camera review and entered a new order granting the service providers’ motion to quash the subpoenas instead.
For Assistance or More Information
Xact Data Discovery (XDD) is a leading international provider of eDiscovery, data management and managed review services for law firms and corporations. XDD helps clients optimize their eDiscovery matters by orchestrating precision communication between people, processes, technology and data. XDD services include forensics, eDiscovery processing, Relativity hosting and managed review.
XDD offers exceptional customer service with a commitment to responsive, transparent and timely communication to ensure clients remain informed throughout the entire discovery life cycle. At XDD, communication is everything – because you need to know. Engage with XDD, we’re ready to listen.