241 A.3d 248
D.C.2020Background
- Defendant James Pepe, charged with shooting Marquette Brown and asserting self-defense, sought ex parte Superior Court Criminal Rule 17(c) subpoenas to Facebook for ephemeral Instagram "Stories" and account metadata allegedly showing Brown’s threats.
- The trial court authorized the ex parte subpoena (finding exceptional circumstances) and ordered Facebook not to disclose the subpoena’s existence to anyone except counsel until compliance.
- Facebook moved to quash under the Stored Communications Act (SCA), arguing (1) the SCA prohibits disclosure of the requested materials and (2) the SCA leaves disclosure to provider discretion, so it could refuse compulsory production. The trial court denied the motion and entered the nondisclosure order.
- Facebook did not comply with the subpoena and was held in civil contempt; it appealed. The United States intervened in the appeal.
- The D.C. Court of Appeals affirmed the denial of Facebook’s motion to quash and the contempt adjudication, but vacated the nondisclosure order as an unconstitutional, overbroad prior restraint once Facebook represented it had preserved the materials.
Issues
| Issue | Plaintiff's Argument (Pepe) | Defendant's Argument (Facebook) | Held |
|---|---|---|---|
| Whether Pepe is an "addressee or intended recipient" under SCA §§2702(b)(1),(b)(3) for ephemeral Instagram Stories | "Addressee/intended recipient" status is determined at receipt and does not depend on continued access; exceptions permit disclosure to recipients even if messages expire | Ephemeral messages are not within recipient status once they auto-delete; sender’s use of disappearing format removes recipient status | Court: recipient status exists at time of sending; ephemeral messages fall within the addressee/intended recipient exceptions — Facebook may divulge to Pepe |
| Whether the SCA implicitly preempts compulsory process or permits providers to refuse subpoenas when exceptions allow disclosure | SCA exceptions remove the disclosure bar and do not create a provider privilege against subpoenas; courts may compel production | The permissive term "may" indicates provider discretion to refuse disclosure and Congress intended to leave disclosure to providers, insulating them from subpoenas | Court: No implicit preemption; where SCA exceptions permit disclosure the provider may be compelled to comply; "may" functions as exception to the general prohibition, not a blanket privilege |
| Validity of trial court’s nondisclosure order barring Facebook from revealing the subpoena’s existence | Nondisclosure needed to prevent spoliation and protect defense strategy; exceptional circumstances justified ex parte process and restraint | Nondisclosure is a content-based prior restraint on speech violating the First Amendment; Facebook must be free to inform others (e.g., government) to explore lawful alternatives | Court: Nondisclosure was an unlawful, overbroad prior restraint; vacated the order because Facebook had preserved the materials and the restriction was more extensive than necessary |
| Sanctions/contempt for Facebook’s noncompliance | Contempt appropriate where provider unlawfully refuses to produce subpoenaed material | Facebook contended SCA authorized its refusal and sought relief on that basis | Court: Affirmed contempt; SCA did not authorize Facebook’s refusal to comply with subpoenaed materials covered by SCA exceptions |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (1974) (subpoena power is essential to courts and exceptions to compulsory process are disfavored)
- Facebook v. Wint, 199 A.3d 625 (D.C. 2019) (interpretation of SCA prohibitions and subpoenas)
- Facebook v. Superior Court (Hunter), 417 P.3d 725 (Cal. 2018) (§2702 exceptions do not give providers license to defy otherwise lawful subpoenas)
- Bartnicki v. Vopper, 532 U.S. 514 (2001) (content-based prior restraints and First Amendment scrutiny)
- Matter of Subpoena 2018R00776, 947 F.3d 148 (3d Cir. 2020) (strict scrutiny for nondisclosure orders under SCA-like provisions)
- In re Search Warrant Issued to Google, 269 F. Supp. 3d 1205 (N.D. Ala. 2017) (review applying strict scrutiny to nondisclosure orders and discussing provider speech interests)