California Courts Again Avoid Social Media Constitutional Question

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.

Facebook, Inc. v. Superior Court of the City and County of San Francisco

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’s Analysis

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:

  • whether the material requested is adequately described
  • whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources)” [emphasis in original]
  • whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental interest” [emphasis in original]
  • whether the defendant has acted in a timely manner
  • whether the time required to produce the requested information will necessitate an unreasonable delay of defendant’s trial
  • whether the production of the records containing the requested information would place an unreasonable burden on the governmental entity involved
  • whether the defendant has shown a sufficient plausible justification for the information sought

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:

  • First, the defendant could try to subpoena the relevant materials from the prosecution witness. The witness might invoke the Fifth Amendment right against self-incrimination, but until an attempt is made, that concern is theoretical.
  • Second, the trial court might be able to order the witness to consent to production by the service providers.
  • Finally, the defendants might be able to obtain the private communications in question from the recipients of the communications – either through subpoena and production, or through consent to service provider production.

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.

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About the Author

Matthew Verga

Director of Education

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A fourteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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