Facebook, Inc. v. City of S.F.
233 Cal. Rptr. 3d 77
Cal.2018Background
- Defendants Hunter and Sullivan, indicted for murder and gang-related offenses, served broad pretrial subpoenas on Facebook, Instagram, and Twitter seeking public and private posts (including deleted content) from the victim and a key witness.
- Providers invoked the federal Stored Communications Act (SCA), 18 U.S.C. §§ 2701 et seq., arguing § 2702(a) bars service providers from divulging stored communications and no exception applied.
- Defendants argued the SCA, as applied to prevent compliance with the subpoenas, violated their Fifth and Sixth Amendment rights to a fair trial and compulsory process.
- The trial court denied providers’ motions to quash and ordered in camera production; the Court of Appeal stayed that order and ruled the SCA barred enforcement of the subpoenas pretrial.
- The California Supreme Court granted review, solicited supplemental briefing on whether § 2702(b)(3) (lawful consent) permits disclosure of communications configured as public, and concluded public posts fall within that exception.
Issues
| Issue | Real Parties' Argument | Providers' Argument | Held |
|---|---|---|---|
| Whether § 2702 bars providers from disclosing social‑media communications configured as public | Defendants initially accepted SCA preclusion and advanced constitutional challenge; later conceded public posts may be disclosed | Providers originally argued § 2702 forbids disclosure of all communications, public or private | Public communications configured by the user fall within § 2702(b)(3)’s lawful consent exception and may be disclosed pursuant to a lawful state subpoena |
| Whether communications sent to a "large group" of friends/followers are effectively public | Defendants: restricted posts to large groups lose privacy; thus should be treated as public and disclosable | Providers: restricting to a specified audience evinces intent to preserve privacy; number of recipients irrelevant | Rejected defendants’ broad rule; posts restricted to specified recipients (even many) are not per se public and remain protected unless otherwise shown |
| Whether § 2702(b)(3) merely permits disclosure ("may") or allows providers to refuse subpoenas even when disclosure is allowed | Defendants: courts can compel disclosure where SCA exception applies; providers must comply with state subpoenas | Providers: “may” confers discretion to refuse disclosure even against valid subpoenas | The court follows Negro: where the SCA permits disclosure (e.g., consent), state subpoena power can compel production; "may" creates an exception, not blanket immunity from compulsory process |
| Whether the SCA is facially or as‑applied unconstitutional because it prevents pretrial discovery | Defendants: SCA violates due process, confrontation, compulsory process rights as applied | Providers: any constitutional remedy should be addressed at trial; pretrial relief not warranted | Court avoids constitutional ruling; remands for development of the record to determine which communications were public, deleted, or reconfigured and whether subpoenas must be enforced |
Key Cases Cited
- Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002) (legislative history supports public/private distinction for SCA protection)
- Snow v. DirecTV, 450 F.3d 1314 (11th Cir. 2006) (Section 2701 protects nonpublic stored communications)
- Ehling v. Monmouth‑Ocean Hosp. Serv. Corp., 961 F.Supp.2d 659 (D.N.J. 2013) (SCA protection hinges on whether user took steps to restrict access)
- O’Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal. Ct. App.) (e‑mail provider barred from disclosing private communications absent an exception)
- Viacom Int’l, Inc. v. YouTube, Inc., 253 F.R.D. 256 (S.D.N.Y. 2008) (providers may not divulge videos designated private; public posts implicate implied consent)
- Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010) (distinguishes public posts from private messages; remand to develop record on privacy settings)
- Negro v. Superior Court, 230 Cal.App.4th 879 (Cal. Ct. App. 2014) (where user consents, provider may be compelled by subpoena; “may” in § 2702(b) does not create blanket provider immunity)
- People v. Hammon, 15 Cal.4th 1117 (Cal. 1997) (framed issues about scope of pretrial discovery rights in criminal cases)