Facebook v. Superior Court
D072171
| Cal. Ct. App. | Sep 26, 2017Background
- Defendant Lance Touchstone, charged with attempted murder, subpoenaed the private and public contents of the victim’s Facebook account seeking exculpatory evidence (messages, posts, photos, location, etc.).
- Facebook moved to quash, arguing the Stored Communications Act (SCA, 18 U.S.C. § 2701 et seq.) prohibits disclosure of stored user content in response to a subpoena; Facebook had preserved the account and advised defense to obtain the content from the victim or via a government warrant.
- The trial court denied Facebook’s motion to quash and ordered Facebook to produce the account contents for in camera review; Facebook petitioned for writ relief in the Court of Appeal and obtained a stay.
- The Court of Appeal addressed whether (1) the SCA preempts state enforcement of subpoenas for protected content, (2) a court may compel a subscriber or recipient to consent to provider disclosure for in camera review, and (3) procedures to prevent spoliation.
- The appellate court concluded the SCA bars compelled disclosure by a provider absent an applicable exception, the supremacy clause prevents enforcement of the trial court’s order against Facebook, and defendants must use alternatives (subpoena the account holder, compel consent, request government warrant, seek recipients’ records, or wait for trial relevance).
Issues
| Issue | Plaintiff's Argument (Touchstone) | Defendant's Argument (Facebook) | Held |
|---|---|---|---|
| Whether SCA allows a court to compel a provider to produce private stored social-media content to a criminal defendant pretrial | SCA cannot defeat Touchstone’s due process, confrontation, compulsory-process, and effective-assistance rights; court should be able to order in camera review | SCA prohibits providers from voluntarily divulging stored contents; only statutory exceptions (warrant, lawful consent, etc.) permit disclosure | Held for Facebook: SCA bars compelled disclosure by provider; trial court order must be vacated under federal supremacy |
| Whether the Confrontation Clause requires pretrial discovery of third-party records held by providers | Pretrial access is necessary for effective cross-examination and fairness | No general constitutional right to discovery; Hammon and subsequent cases reject pretrial access to privileged/third-party records | Held for Facebook: confrontation clause does not mandate pretrial access to SCA-protected records |
| Whether Due Process/Compulsory Process requires parity with prosecution (i.e., access to records government can obtain via warrant) | Defendant: fairness requires same access as prosecution so defense can gather exculpatory evidence | Government’s investigatory powers differ from defendant’s; Ritchie does not compel third-party disclosure where federal law prohibits it | Held for Facebook: due process/compulsory-process do not render SCA unconstitutional or authorize compelled provider disclosure |
| Whether trial courts may compel the account holder or recipients to consent to provider disclosure (and how to guard against spoliation) | Court should be able to order in camera review or compel subscriber/recipient consent; in camera safeguards will protect privacy | Providers cannot disclose without lawful exception; but courts can order the account holder or recipients to consent under §2702(b)(3); preservation tools exist (§2703(f)) | Held: Courts may compel a subscriber or recipient to consent to disclosure; preservation orders and other measures can mitigate spoliation concerns |
Key Cases Cited
- Facebook, Inc. v. Superior Court, 240 Cal.App.4th 203 (2015) (appellate decision addressing defendants’ access to social-media records under the SCA)
- Hammon, 15 Cal.4th 1117 (1997) (no general Sixth Amendment right to pretrial disclosure of privileged information; balance at trial)
- Ritchie v. Pennsylvania, 480 U.S. 39 (1987) (due process may require in camera review of certain government-held records; statutory disclosure provisions relevant)
- Weatherford v. Bursey, 429 U.S. 545 (1977) (no general constitutional right to discovery in criminal cases)
- Brady v. Maryland, 373 U.S. 83 (1963) (government must disclose materially exculpatory evidence)
- O'Grady v. Superior Court, 139 Cal.App.4th 1423 (2006) (subpoenas that would compel provider to violate SCA are unenforceable)
- Negro v. Superior Court, 230 Cal.App.4th 879 (2014) (court-ordered account-holder consent can satisfy SCA lawful-consent exception)
- Juror Number One v. Superior Court, 206 Cal.App.4th 854 (2012) (court may compel a witness to consent to provider disclosure; discussion of SCA exceptions)