FACEBOOK, INC., APPELLANT, v. JAMES PEPE, APPELLEE, AND UNITED STATES, INTERVENOR.
No. 19-SS-1024
DISTRICT OF COLUMBIA COURT OF APPEALS
May 14, 2020
Appeal from the Superior Court of the District of Columbia (CF1-18581-18) (Hon. Juliet McKenna, Trial Judge) (Argued January 14, 2020 Decided May 14, 2020)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Joshua S. Lipshutz, with whom Naima L. Farrell, Aaron Smith, John K. Roche, Ariel Glickman, Michael J. Holecek, of the bar of the State of California, pro hac vice, by special leave of the court, and Thomas F. Cochrane, of the bar of the State of California, pro hac vice, by special leave of the court, were on the brief, for appellant.
William Collins, Public Defender Service, with whom Samia Fam, Mikel-Meredith Weidman, and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellee.
Andrew W. Laing, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Brian A. Benczkowski, Assistant Attorney General, John P. Cronan, Principal Deputy Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, and Nathan P. Judish, Attorney, Computer Crime and Intellectual Property Section, Criminal Division, United States Department of Justice, were on the brief, for intervenor.
Before GLICKMAN and FISHER, Associate Judges, and NEBEKER, Senior Judge.
I.
Mr. Pepe‘s subpoena sought evidence from Facebook supporting his defense to then-pending criminal charges arising out of the shooting of Marquette Brown on December 6, 2018. Mr. Pepe claimed he shot in self-defense after Mr. Brown and
In an effort to obtain the evanescent Instagram Story and other potentially helpful evidence of Brown‘s threats, Mr. Pepe asked the Superior Court to authorize an ex parte subpoena to Facebook under
Facebook moved to quash the subpoena. It principally contended that the subpoena was unenforceable because the requested records were subject to the privacy protections of the Stored Communications Act (SCA).5 After a hearing, the trial court denied the motion. The court ruled that the requested records fell within statutory exceptions to the SCA‘s prohibitions on disclosure of electronic records and the contents of electronic communications, and that the SCA did not empower Facebook to defy an otherwise lawful subpoena for such excepted information.
Facebook also requested the court‘s permission to disclose the existence of the ex parte subpoena to the government or Mr. Brown so it could explore whether the requested information could be procured without the subpoena – for example, if the government were to obtain a warrant for the information and thereafter produce it to Mr. Pepe. Mr. Pepe opposed this request, and the trial court ultimately rejected it and ordered Facebook not to disclose the subpoena to any person or entity (other than its counsel) until it had complied with the subpoena. The court concluded
Facebook did not comply with the subpoena by the deadline imposed by the court. The court accordingly held it in civil contempt and stayed the monetary sanctions it imposed pending Facebook‘s expedited appeal.7
Our January 16, 2020 Judgment in this appeal upheld the subpoena and affirmed the adjudication of civil contempt. We agreed with the trial court, Mr. Pepe, and the United States that the SCA neither required nor authorized Facebook‘s refusal to comply with the subpoena. However, we vacated the nondisclosure order.8
Given Facebook‘s unrebutted representation that it had secured any requested communications and records in its possession, we were not persuaded the nondisclosure order was justified by a need to preserve the records or by Mr. Pepe‘s confidentiality concerns.
II. Enforceability of the Subpoena
As a provider of electronic communication services, Facebook must comply with the provisions of the SCA governing its disclosure of customer communications and records. The provision of the SCA applicable to this case,
In Facebook v. Wint10 we held that where no statutory exception applies,
In opposing Mr. Pepe‘s invocation of these exceptions, Facebook makes two principal arguments. First, it argues that Mr. Pepe is not “an addressee or intended recipient” of an Instagram communication that has, by design, automatically expired and disappeared from his account. Second, Facebook argues that even if subsections (b)(1), (b)(3), and (c)(6) permit it to divulge the requested communications and records to Mr. Pepe, it cannot be compelled to do so by his subpoena because the SCA preempts such compulsory discovery and commits the disclosure decision in cases like this to the service provider‘s unfettered discretion. Each of these arguments presents a question of statutory interpretation as to which our review is de novo.13 As we stated in construing the SCA in Wint,
We first look to see whether the statutory language at issue is “plain and admits of no more than one meaning.” Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation marks omitted). We will give effect to the plain meaning of a statute “when the language is unambiguous and does not produce an absurd result.” McNeely v. United States, 874 A.2d 371, 387 (D.C. 2005) (internal quotation marks omitted). “[W]e may also look to the legislative history to ensure that our interpretation is consistent with legislative intent.” Thomas v. Buckley, 176 A.3d 1277, 1281 (D.C. 2017) (internal quotation marks omitted).14
For the following reasons, we reject both arguments and conclude that the SCA does not render Mr. Pepe‘s subpoena unenforceable.15
A. Mr. Pepe‘s Status as an “Addressee or Intended Recipient”
Facebook argues that Mr. Pepe cannot be considered an “addressee or intended recipient” of Instagram messages that have expired and disappeared from
The SCA does not define or qualify the meaning of an “addressee or intended recipient” of an electronic communication. “When the terms of a statute are undefined and not recognized terms of art, we presumptively accord them their ordinary meaning in common usage, taking into account the context in which they are employed[.]”16 Facebook has not rebutted that presumption in this case.
In the ordinary sense of the term, being an “addressee or intended recipient” of a communication is not linked in any way to how long the receiver continues or is intended to possess it. In general, an “addressee” is simply “one to whom something is addressed,” and to “address” is simply “to direct to go to” or “to direct by way of communication.”17 The status of addressee arises at the time of sending an addressed item, and this status is not altered by what happens to the item thereafter, or by what the sender wanted or expected to happen thereafter. We would not say, for example, that someone ceased to be the addressee of a letter that was deposited in the mail if the letter was lost in transit or thrown away after receipt. Similarly, an “intended recipient” is simply “one that receives,” that is, “take[s] possession or delivery of,” as the sender had “in mind” or in accordance with the sender‘s plans or “designs.”18 The status of intended recipient does not depend on whether the recipient keeps the communication or whether the sender intended that it be preserved. For example, a person need not record a phone call in order to be deemed its intended recipient. Absent any indication to the contrary, the plain and most natural reading of the term “addressee or intended recipient” in
Indeed, the (b)(1) and (b)(3) exceptions would serve little purpose and be virtually superfluous if they permitted Facebook to disclose electronic communications only to, or with the consent of, people who still have the communications. Facebook‘s disclosure is unnecessary for those individuals to obtain or consent to share communications they already control. The (b)(1) and (b)(3) exceptions are useful when a receiver did not retain possession of, or access to, a desired electronic communication.
That the sender may have intended a communication to disappear by sending it in an ephemeral format thus has no bearing
We hold that under
B. The Enforceability of a Subpoena for Information the SCA Permits Facebook to Divulge
Facebook contends that even if
As the Supreme Court has emphasized, “preemption cannot be based on a freewheeling judicial inquiry into whether a state [rule] is in tension with federal objectives.”23 For Facebook‘s implicit preemption argument to succeed, it “must be grounded ‘in the text and structure of the statute at issue.‘”24 We conclude that the necessary grounding is lacking.
There is, to begin with, a weighty and well-settled presumption against inferring that Congress silently intended to foreclose or restrict the availability of a core component of the judicial process such as the subpoena power. As we reiterated in Wint,
[I]t is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense[.] . . . [E]xceptions to the demand for every man‘s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.25
Thus, a “clear and strong indication” of Congressional intent “is required before it may be implied that the policy of prohibition is of such force as to dominate the broad objective of doing justice” by preempting the ordinary rules of discovery in the judicial process.26
Such clear intent exists for us to conclude that when
Facebook argues that subsections (b) and (c) state that providers “may divulge” information under certain conditions, and that “the permissive ‘may’ rather than the imperative ‘shall‘”28 indicates that the decision to divulge is discretionary. This assertion
the subdivision[s] [in
§ 2702 ] where ‘may’ appears [are] framed not as a grant of discretionary power . . . but as a special exception to a general prohibition. In such a context all ‘may’ means is that the actor is excused from a duty, liability, or disability otherwise imposed by the prohibition.29
Indeed, underscoring that point, some of the excepted circumstances in which subsections (b) and (c) say a provider “may divulge” information are, in fact, circumstances in which the provider must divulge it.30
And “while ‘may’ suggests discretion, it does not necessarily suggest unlimited discretion.”31 That the SCA grants providers certain exemptions from its general prohibition on disclosure does not imply that it grants providers exemptions from mandatory disclosure requirements imposed by other law. Although the SCA preempts other disclosure laws to the extent they would require providers to violate the SCA, that is no reason to think the SCA also preempts laws that require disclosures the SCA expressly permits.32 When the SCA lifts the bar on disclosure of electronic communications in
Accordingly, we hold that the SCA did not authorize Facebook‘s refusal to comply with Mr. Pepe‘s subpoena for information that SCA
Courts are particularly uniform in demanding that service providers comply with subpoenas for information that falls within the
III. The Nondisclosure Order
A. Background
At the hearing in the trial court on its motion to quash Mr. Pepe‘s subpoena, Facebook‘s counsel asked the court to defer ruling on the issue of its enforceability under the SCA because the subpoenaed materials might be otherwise procurable.36
To that end, counsel asked the court to “clarify that there is no gag order on Facebook” so that it could talk to the government about the subpoena, and argued that any restraint on its ability to speak about the subpoena would violate the First Amendment. The court responded that it had not imposed a “gag” order on Facebook and doubted it had the authority to do so; as permitted by
At that point, Mr. Pepe‘s counsel asserted that the court did have the authority to preclude Facebook from disclosing the existence of the subpoena to anyone. Counsel stated that Mr. Pepe had a compelling interest in maintaining the confidentiality of his trial strategy and defense investigation.
In the briefing that followed, Mr. Pepe claimed, on information and belief, that the government was unaware of the threatening Instagram Story that Mr. Brown allegedly sent to Mr. Pepe. Disclosure to the government of its possible existence, Mr. Pepe argued, would prompt a government investigation that “may lead someone close to Mr. Brown to attempt to tamper with the photo or video” or persons with whom Mr. Brown may have communicated about the threats to alter their own social media profiles. Mr. Pepe also pointed out that the government would need to seek significant additional information from Facebook or the defense in order to discern “whether it could or would seek a warrant” for Mr. Brown‘s Instagram records. Both the risk of spoliation and governmental intrusion in the defense investigation would “undermine Mr. Pepe‘s defense.”
After considering these arguments, the trial court found “(1) that Mr. Pepe has a compelling interest in having his defense theory, strategy, and investigation remain confidential, that (2) sealing would serve that interest, (3) that in the absence of sealing, that interest would be harmed, and (4) that there are no alternatives to sealing.” The court further found, as required by
B. Discussion
Ordinarily, a decision to issue a subpoena ex parte or enter a protective order is reviewed for abuse of discretion.38 The nondisclosure order, however, implicates a question of law – whether it impermissibly burdens Facebook‘s First Amendment rights – as to which our review is de novo.39
We start with the understanding that witnesses and other third parties in possession of evidence relating to a civil or criminal proceeding generally have a robust
The judicial order in this case mandated that Facebook refrain from discussing the subpoena for its evidence with anyone (except its counsel). Such a “naked prohibition against disclosure[]” of its involvement in this litigation “is fairly characterized as a regulation of pure speech.”41 That regulation is both content-based, because it prohibits the discussion of a particular topic (the subpoena),42 and a prior restraint on speech, as it “forbid[s] certain communications . . . in advance of the time that such communications are to occur” or before the speaker has the opportunity to make them.43 Content-based prior restraints are normally subject to review under strict scrutiny,44 and prior restraints come with a “heavy presumption” against their constitutional validity.45 A content-based prior restraint violates the First Amendment unless it serves a compelling state interest and is narrowly tailored so as to “limit[] speech as little as possible.”46
Section 2705 of the SCA itself provides that governmental entities may apply to a court for a nondisclosure order similar to the one issued here in order to delay notification to customers or subscribers of electronic communication services that their records or communications are subject to a warrant or subpoena.47 Courts have reviewed such orders under strict scrutiny,48 even though the statute arguably appears to allow for their issuance
(A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.49
Strict scrutiny is applied to avoid the “substantial risk” to First Amendment rights posed by the approval of these orders, which are content-based prior restraints.50 In these cases, the compelling interest prong of strict scrutiny is generally satisfied where there is a “reason to believe” disclosure would lead to the adverse consequences enumerated in
We see no reason why a lesser standard of scrutiny should apply where a defendant, allowed under
The SCA cases concerning similar government requests have rejected the application of standards less exacting than strict scrutiny. For example, in Matter of Search Warrant for [redacted].com, the court acknowledged that a
At any rate, whether the standard is strict scrutiny or a somewhat lesser standard, it is still a rigorous one. Our own cases addressing First Amendment limitations on protective orders have required that any order be “necessary to ensure a fair trial . . . or prevent the abuse of the discovery process” and “carefully drawn . . . so as to limit speech as little as possible.”59 And the cases cited by Mr. Pepe as requiring a showing of a “substantial likelihood of prejudice” ask at a minimum whether an applicant for a nondisclosure order has presented sufficient facts to persuade a court that the prejudice identified “might well be realized” and whether the proposed restriction is “essential to the protection of the particular governmental interest involved.”60 Mr. Pepe has not met either prong of even this standard.
We do not deny the possibility that the risks Mr. Pepe identified could be great enough to pose a substantial likelihood of prejudice to his defense and/or satisfy the compelling interest test.61 Generally
As the Superior Court noted, the government was fully aware that Mr. Pepe was asserting a self-defense theory, and defense counsel had even emphasized the potential strength of the defense claim to the government. The government may have been unaware of the nature of the photo and video evidence Mr. Pepe sought, but it is unclear (and he has not shown) how his defense would have been harmed if the government were to learn of it.64 Moreover, it is far from a foregone conclusion that the government would have learned what Mr. Pepe was seeking had Facebook been permitted to inform the government of the existence of the subpoena. The subpoena does not disclose that information, and the SCA likely would have prevented Facebook from disclosing the contents of the requested communications and records to the government without a warrant or the consent of either Mr. Pepe or Mr. Brown.65 So Mr. Pepe did not establish a substantial risk that Facebook‘s disclosure of the existence of his subpoena to the government would even result in revealing any additional details of his self-defense strategy.
Mr. Pepe also did not show an appreciable risk of spoliation. It is true that at the time the Superior Court entered the nondisclosure order, Facebook had not yet represented that it had secured the requested materials, leaving their alteration or destruction a conceivable possibility. However, the likelihood that notice of the subpoena to the government or Mr. Brown would have led to interference with or the deletion of the evidence Mr. Pepe sought was speculative. We think it highly unlikely that informing only the government of the subpoena would have introduced any risk of spoliation; the government would have no interest in allowing evidence to be
IV.
These now articulated rationales support our order of January 16, 2020, affirming the Superior Court‘s order holding Facebook in contempt and its order denying Facebook‘s motion to quash the subpoena, and vacating the Superior Court‘s nondisclosure order.