301 A.3d 740
D.C.2023Background
- The District of Columbia issued a CPPA investigative subpoena to Meta (Facebook) seeking documents identifying Facebook groups, pages, and accounts that violated Meta’s COVID-19 vaccine misinformation policy, later narrowed to materials related to public or functionally public posts.
- The District alleges Meta misrepresented how effectively it policed vaccine misinformation and seeks records to determine whether those representations violated the CPPA.
- Meta refused to comply, arguing (1) the Stored Communications Act (SCA) requires a warrant for government compelled disclosure of electronic communications (§ 2703), and (2) the subpoena violates Meta’s and its users’ First Amendment rights.
- The Superior Court enforced the subpoena; Meta appealed. The D.C. Court of Appeals affirmed, holding the SCA does not bar enforcement here and the subpoena does not violate the First Amendment.
- Key statutory provisions: SCA § 2702 broadly prohibits provider disclosure but contains a consent exception (§ 2702(b)(3)); § 2703 authorizes government compel power and requires a warrant in certain circumstances. Prior D.C. decisions (Wint and Pepe) informed the analysis.
Issues
| Issue | Plaintiff's Argument (District) | Defendant's Argument (Meta) | Held |
|---|---|---|---|
| Whether SCA § 2703 requires the government to obtain a warrant before compelling disclosure of communications that fall within a § 2702(b) exception | § 2702(b)(3) consent exception permits disclosure of public posts and, like Pepe, a valid subpoena under CPPA may compel disclosure | § 2703(a) says a governmental entity may require disclosure only pursuant to a warrant, so the government cannot compel such materials by subpoena | Court held § 2702(b) exceptions permit disclosure and § 2703 is not a categorical bar when a § 2702(b) exception applies; subpoena enforceable |
| Whether the subpoena violates Meta's First Amendment editorial-speech rights | Investigation targets allegedly deceptive public statements (commercial speech) and thus does not impermissibly regulate editorial judgment | Government scrutiny and compelled production will chill Meta's editorial decisions and platform moderation | Court held no First Amendment violation as to Meta; investigation targets potentially deceptive commercial speech and does not chill editorial control |
| Whether the subpoena violates users' First Amendment association or speech rights by identifying authors of public posts | Consumer-protection interest is important and the subpoena is narrowly tailored to public posts; exacting scrutiny satisfied | Compelled identification of users will chill association and deter speech | Court assumed exacting scrutiny but held the subpoena narrowly tailored to a substantial government interest and therefore constitutional |
| Whether the SCA applies at all to publicly posted messages (concurring point) | District (and concurrence) argued SCA protects communications that users take steps to keep private and likely does not cover public posts | Meta argued SCA definitions are broad enough to cover public posts and thus its protections and restrictions apply | Majority avoided deciding; concurring judge would hold SCA does not cover public posts and that consent to disclosure is not fairly inferred after removal |
Key Cases Cited
- United States v. Miller, 425 U.S. 435 (Third-party doctrine on information disclosed to others)
- Katz v. United States, 389 U.S. 347 (public exposure defeats Fourth Amendment expectation of privacy)
- Carpenter v. United States, 138 S. Ct. 2206 (limits on applying Miller to certain digital records)
- United States v. Morton Salt Co., 338 U.S. 632 (three-prong test for enforcing investigative subpoenas)
- NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (exacting scrutiny for disclosure of associational membership lists)
- Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (exacting-scrutiny framework for compelled disclosure)
- Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (regulation of deceptive/commercial speech permissible)
- Warshak v. United States, 631 F.3d 266 (Sixth Circuit on SCA and warrant concerns for emails)
- Facebook, Inc. v. Wint, 199 A.3d 625 (D.C. 2019) (SCA bars provider compliance absent applicable exceptions)
- Facebook, Inc. v. Pepe, 241 A.3d 248 (D.C. 2020) (when § 2702(b) exception applies, provider must comply with valid subpoena)
- Facebook, Inc. v. Superior Court (Hunter), 417 P.3d 725 (Cal. 2018) (discussion of SCA consent exception and public posts)