S245203
IN THE SUPREME COURT OF CALIFORNIA
August 13, 2020
Fourth Appellate District, Division One D072171; San Diego County Superior Court SCD268262
Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Chin, Corrigan, Liu, Kruger and Groban concurred. Chief Justice Cantil-Sakauye filed a concurring opinion. Justice Cuellar filed a concurring opinion.
FACEBOOK, INC. v. SUPERIOR COURT
S245203
Opinion of the Court by Cantil-Sakauye, C. J.
We granted review to address the propriety of a criminal defense subpoena served on Facebook, seeking restricted posts and private messages of one of its users who is also a victim and critical witness in the underlying attempted murder prosecution.
In addition to discussing the Fifth and Sixth Amendment issues presented in this and recent related litigation (Facebook v. Superior Court (Hunter) (2018) 4 Cal.5th 1245 (Facebook (Hunter))), the parties raised four related preliminary legal issues, all potentially dispositive, in the course of their briefing.
Accordingly, after giving the parties notice and an opportunity to comment, we unsealed the declaration and related exhibits, took judicial notice of the preliminary hearing transcript and related exhibits, and solicited supplemental briefing from all three parties concerning the adequacy of the justifications for the subpoena. In response, real party in interest Lance Touchstone, defendant in the prosecution below (hereafter defendant) filed a supplemental brief maintaining that the subpoena is supported by good cause, and that the trial court properly denied Facebook‘s motion to quash. By contrast, the supplemental briefs filed by Facebook and the district attorney contend that defendant failed to state sufficient justification for acquiring the sought communications, and that the subpoena is not supported by good cause. When it came time to file reply briefs in the latest round of briefing, Facebook and the district attorney did so, responding to defendant‘s arguments. Defendant did not file a reply.
The most recent briefing has not alleviated our initial questions concerning the viability of the underlying subpoena. As explained in greater detail below, the trial court erred by conducting an incomplete assessment of the relevant factors and interests when it found that defendant established good cause to acquire the sought communications from Facebook and denied Facebook‘s motion to quash. The trial court‘s misstep was understandable, given that (1) the trial court did not have the benefit of full adversarial engagement, (2) there is surprisingly little guidance in the case law and secondary literature with regard to the appropriate inquiry, and (3) this court has not previously articulated a clear roadmap or set of factors to be applied by trial courts in this context.
In this case, we will provide direction to the trial court and parties, both for the benefit of this litigation and other similar cases. In doing so we will highlight seven factors that a trial court should explicitly consider and balance in ruling on a motion to quash a subpoena duces tecum directed to a third party. In the process we will reiterate our prior caution to trial courts against readily allowing a defendant seeking to enforce such a subpoena to proceed, as was done here, ex parte and under seal.
Ultimately, we will direct the Court of Appeal to remand this matter to the trial court with directions that the trial court vacate its order denying the motion to quash and conduct further proceedings consistent with the guidelines set forth in this opinion.
I. BACKGROUND AND UNDERLYING PROCEDURE
In Facebook (Hunter), supra, 4 Cal.5th 1245, we addressed issues concerning the propriety of criminal defense subpoenas served on social media entities, including Facebook, seeking restricted posts and private messages of two of their users. We held, in part, that to the extent such a subpoena seeks a communication that had been configured as and remained public, Facebook could not assert the federal Stored Communications Act (
At the time when the proceeding in Facebook (Hunter), supra, 4 Cal.5th 1245 was pending in this court, we granted review in this seemingly similar pretrial criminal discovery matter. In the present case, defendant is charged with shooting and attempting to murder Jeffrey Renteria. Defendant seeks all of Renteria‘s Facebook communications (including restricted posts and private messages) before and after the shooting.
Defendant argues that he needs all electronic communications by Renteria in order to prepare his defense in two respects: Primarily, he contends, he has a viable claim of self-defense against Renteria, and requires the communications to investigate and present that affirmative defense. Secondarily, or alternatively, he seeks to prepare to impeach the character of the anticipated main prosecution witness against him — the victim, Renteria — if, as expected, Renteria is called by the prosecution at trial.
Defendant asserts that to the extent the SCA allows Facebook to block his subpoena, the Act must be found to violate his federal Fifth Amendment due process rights, along with his Sixth Amendment rights of confrontation, cross-examination, and counsel — and hence the SCA is unconstitutional as applied to him. Defendant recognizes that in People v. Hammon (1997) 15 Cal.4th 1117, 1128, we declined
The Court of Appeal below, observing that Facebook (Hunter), supra, 4 Cal.5th 1245 was then pending before us, rejected defendant‘s claims (Facebook, Inc. v. Superior Court (Touchstone) (2017) 15 Cal.App.5th 729, 739-745) and denied him pretrial discovery (id., at pp. 745-748 [exploring optional means by which defendant might obtain the sought information]). In our subsequent order granting review we directed the parties to address additional issues arising from the briefing and the Court of Appeal‘s opinion (id., at pp. 746-748) — specifically, whether the trial court might compel Facebook‘s compliance with the underlying subpoena (or alternatively compel Renteria to consent to disclosure by Facebook), and whether the trial court might compel the prosecution to issue a search warrant on behalf of the underlying defendant.
In May 2018 we permitted the district attorney, the prosecuting authority in the underlying criminal action, to intervene in this proceeding. We later allowed the district attorney to file briefs, and also permitted all parties and amici curiae to file supplemental briefs addressing the effect, if any, of our decision in Facebook (Hunter), supra, 4 Cal.5th 1245. That briefing in turn spawned two additional potentially dispositive issues: whether Facebook users expansively consent to disclosure of all communications; and whether Facebook‘s business model removes it from coverage under the SCA.
II. FACTS ALLEGED IN THE PETITION FOR REVIEW — CONTRASTED WITH THE PRELIMINARY HEARING TESTIMONY AND RELATED EXHIBITS
Defense counsel‘s recitation of the facts in the petition for review, which is substantially identical to what defense counsel previously told the trial court and the Court of Appeal, advanced three key representations, as follows:
(1) “In August 2016, [defendant] drove to San Diego . . . to visit his sister Rebecca . . . . When he arrived, he discovered that Rebecca‘s boyfriend, Jeffrey Renteria, had moved into her home. Over the next several days, [defendant] observed odd behavior by Renteria . . . [and] grew concerned for their safety on August 8, 2016, when he [and Rebecca] noticed that Rebecca‘s personal firearms were missing from the home, [and] . . . Renteria himself . . . appeared to have moved out [of the house]. [(2)] When [defendant] and Rebecca attempted to contact Renteria over the phone about
We obtained the underlying preliminary hearing transcript and exhibits from the superior court, and without objection we took judicial notice of those items. These materials paint a picture different from the facts set forth by defendant in his petition for review and related prior (and subsequent) briefs.
With regard to defendant‘s first representation — that defendant and his sister feared Renteria had taken his sister‘s guns from their home — testimony at the preliminary hearing suggests that on the morning of the shooting Renteria had placed Rebecca‘s firearms, and some of defendant‘s ammunition, into a secure container in Rebecca‘s attic. On cross-examination of Renteria at the preliminary hearing, and on redirect examination, Renteria repeatedly confirmed that he had hidden the weapons in the attic. A police officer who responded to the shooting further testified at the preliminary hearing that during a search immediately following the shooting, those same guns were found in Rebecca‘s room: a rifle was in a locked bag that was apparently in plain sight; a Glock handgun was in a dresser; and two loaded magazines for the handgun were outside the dresser. Defense counsel declined to cross-examine the officer.
This testimony appears to suggest that defendant and Rebecca had themselves found the firearms and magazines, placed them in her room, and hence would have had no reason to believe at the time of the shooting that any of those items were in Renteria‘s possession. Thus, defendant‘s characterization of the facts in his presentation to the lower courts and this court appears inconsistent with the evidence submitted at the preliminary hearing.
With regard to defendant‘s second factual recitation — that Renteria had threatened that he was coming to harm defendant and his sister — the preliminary hearing transcript reveals Renteria testified that, after receiving increasingly aggressive messages from Rebecca, he had responded to Rebecca and her brother, telling them that “if you try anything, you‘re going to jail for a
With regard to defendant‘s third factual recitation — that Renteria “burst through” Rebecca‘s front door and “lunged at” defendant and Rebecca — Renteria testified at the preliminary hearing that, soon after sundown, he told Rebecca by phone that he would return to the house to speak with her. Renteria testified that after unlocking and entering the home‘s front door, and immediately before he was shot, he was holding (only) a smartphone, which he used to take two photographs of defendant while defendant, sitting on a couch with Rebecca, raised his gun and prepared to shoot Renteria. Those two photos, and other related photos taken by police officers, all introduced as exhibits at the preliminary hearing, show a person identified as defendant, sitting back and cross-legged on a sofa, apparently in the early and then later process of raising his gun, while seated next to Rebecca. Defendant and Rebecca appear to be approximately six to eight feet from the front door where Renteria stood and took the pictures in the lighted room. This evidence is in tension with the narrative that defense counsel represented to all three levels of courts until very recently — that Renteria “burst though” the door, and that he “lunged at” (and inferentially posed a deadly threat to) defendant or his sister. Again, on cross-examination, Renteria confirmed his testimony, emphasizing that he had his phone in his right hand when, intending to make a video, he instead “only hit the camera button,” and took the two pictures. Defense counsel thereafter declined the court‘s invitation to offer “[a]ny affirmative evidence of the defense.”
In sum, the testimony and exhibits introduced at the preliminary hearing call into question (1) defendant‘s asserted self-defense justification for obtaining access to Renteria‘s restricted posts and private messages and (2) defendant‘s contention that his need for access to such communications is particularly weighty and overcomes any competing privacy interests of victim and social media user Renteria. Although this is, to be sure, merely preliminary hearing evidence, it nevertheless constitutes relevant material that could properly be considered by a trial court that, having been presented with an assertedly viable claim of self-defense, is required to rule on a motion to quash a subpoena seeking restricted and private social media communications.
Five months after the preliminary hearing described above, defendant sought, before a different judge, the underlying subpoena at issue in this litigation. He supported his demand for all of Renteria‘s Facebook communications (including restricted posts and private messages), and a related request that Facebook preserve all such communications, by offering a sealed declaration describing and quoting certain public Facebook posts made by Renteria after the shooting that, defendant asserted, revealed Renteria‘s violent general musings.2 The trial judge ordered Facebook to comply with the subpoena or appear in court to address any objection to it and to preserve the account and related stored communications.
Facebook preserved Renteria‘s account as directed, and then moved to quash the subpoena. Defendant‘s publicly-filed brief opposing the motion to quash recited the familiar trilogy noted earlier: (1) on the day of the shootings defendant “noticed that Rebecca‘s personal guns and ammunition were missing from the apartment“; (2) upon contacting Renteria about this, he “made threatening statements to harm [defendant] and Rebecca,” causing them to be “concerned, alarmed, and afraid“; and (3) immediately before the shootings, “Renteria burst through the front door and charged at them.”
Defendant argued in his brief opposing the motion to quash that he had established the requisite “plausible justification” (see, e.g., City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134 (Alhambra)) for acquiring any restricted posts and private messages, and that the motion to quash should be denied. In support, defendant invited the trial judge to “review . . . the specific plausible justifications establishing [defendant‘s] right to compel the disclosure of documents” set out in a second and also sealed declaration in opposition to the motion to quash filed that date, April 21, 2017, simultaneously with the opposition brief.3
additional information that demonstrates a motivation or character for dishonesty in this matter, (3) it may contain additional information that demonstrates a character for violence that is relevant to the self-defense that will be asserted by defense counsel at trial, and [(4)] it may contain additional information that provides exonerating, exculpatory evidence for [defendant].” And this, counsel asserted, established a plausible justification for disclosure via the underlying subpoena.
The unredacted version of the April 21 sealed declaration and related exhibits was made available to the trial court. Those documents also were subsequently called up by the Court of Appeal, and thereafter we obtained them from the appellate court. After reviewing those documents and considering that material in conjunction with the earlier-described preliminary hearing transcript and exhibits, we advised the parties under
IV. RELEVANT LAW CONCERNING A MOTION TO QUASH A CRIMINAL SUBPOENA DUCES TECUM
At this point it is useful to describe the relevant statutes and case law relating to criminal subpoenas. Under
Although no substantial showing is required to issue a criminal subpoena duces tecum, as explained below, in order to defend such a subpoena against a motion to quash, the subpoenaing party must at that point establish good cause to acquire the subpoenaed records. In other words, as we have observed, at the motion to quash stage the defendant must show “some cause for discovery other than ‘a mere desire for the benefit of all information.’ ” (Pitchess, supra, 11 Cal.3d at p. 537.)
How should a trial court assess good cause to enforce a subpoena duces tecum in the face of a motion to quash? A helpful decision by Justice Croskey, filed more than three decades ago, lists seven factors that “[t]he trial court . . . must consider and balance” when “deciding whether the defendant shall be permitted to obtain discovery of the requested material.” (Alhambra, supra, 205 Cal.App.3d 1118, 1134, italics added.)5 In turn, those seven factors are helpfully set forth, along with citations to some of the cases concerning discussion of the issue we face in this case — that is, the enforcement of a criminal subpoena duces tecum issued to a third party — in a leading criminal discovery treatise, Hoffstadt, California Criminal Discovery (5th ed. 2015) § 13.03, pages 390-391 (Hoffstadt on Criminal Discovery). Most recently, the appellate court in Facebook v. Superior Court (Hunter) (2020) 46 Cal.App.5th 109,
119-121 (review granted
A. The Alhambra factors
We list the seven factors that should be considered by a trial court in considering whether good cause has been shown to enforce a subpoena that has been challenged by a motion to quash. In the process, we include additional relevant case citations to those set forth in Alhambra and Hoffstadt on Criminal Discovery:
(1) Has the defendant carried his burden of showing a ” ‘plausible justification’ ” for acquiring documents from a third party (Kling v. Superior Court of Ventura County (2010) 50 Cal.4th 1068, 1075 (Kling); Hill v. Superior Court (1974) 10 Cal.3d 812, 817-818 (Hill) [discovery context]; Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804 (Joe Z.) [discovery context]; Ballard v. Superior Court (1966) 64 Cal.2d 159, 167 (Ballard) [discovery context]; see also, e.g., Facebook (Hunter) II, supra, 46 Cal.App.5th at p. 119, rev. granted; Alhambra, supra, 205 Cal.App.3d at pp. 1124, 1128, 1131-1136 [discovery context]; Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 162-164 (Lemelle) [discovery context]; Pacific Lighting Leasing Co. v. Superior Court (1976) 60 Cal.App.3d 552, 566-567 (Pacific Lighting); In re Valerie E. (1975) 50 Cal.App.3d 213, 218 [discovery context]) by presenting specific facts demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence that will reasonably ” ‘assist [the defendant] in preparing his defense’ “? (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305,
1318 (Barrett); Alhambra, supra, 205 Cal.App.3d 1118, 1133-1134 [discovery context].) Or does the subpoena amount to an impermissible ” ‘fishing expedition’ “? (Pitchess, supra, 11 Cal.3d at p. 538; Barrett, supra, 80 Cal.App.4th at p. 1320, fn. 7.)6
(2) Is the sought material adequately described and not overly broad? (People v. Serrata (1976) 62 Cal.App.3d 9, 15 (Serrata); Alhambra, supra, 205 Cal.App.3d at p. 1134 &
fn. 16 [discovery context]; see also Lemelle, supra, 77 Cal.App.3d 148, 165, and cases cited [discovery context].)
(3) Is the material “reasonably available to the . . . entity from which it is sought (and not readily available to the defendant from other sources)“? (Alhambra, supra, 205 Cal.App.3d at p. 1134, italics added [discovery context]; see also Facebook (Hunter), supra, 4 Cal.5th at p. 1290 [noting prospect that “the proponents can obtain the same information by other means“] and id., at p. 1291 [suggesting that the trial court on remand consider alternative mechanisms]; Hill, supra, 10 Cal.3d 812, 817 [posing whether the defendant “cannot readily obtain the [discovery] information through his own efforts“]; Facebook (Hunter) II, supra, 46 Cal.App.5th at pp. 120-121, rev. granted [considering various alternative sources for the subpoenaed information]; People v. Von Villas (1992) 10 Cal.App.4th 201, 228-236 (Von Villas) [concluding, in light of factors set out in Delaney v. Superior Court (1990) 50 Cal.3d 785, that the trial court properly granted a freelance newsperson‘s motion to quash a subpoena duces tecum on the ground that there existed an alternative source for the requested information7].)
(4) Would production of the requested materials violate a third party‘s “confidentiality or privacy rights” or intrude upon “any protected governmental interest“? (Alhambra, supra, 205 Cal.App.3d at p. 1134 [discovery context]; Facebook (Hunter) II, supra, 46 Cal.App.5th at p. 121, rev. granted [noting a social media user‘s ” ‘privacy interests’ ” in subpoenaed
798–816 [construing scope of the state constitutional and statutory newsperson‘s shield law in the context of a criminal defense subpoena].)
(5) Is defendant‘s request timely? (Hill, supra, 10 Cal.3d 812, 821 [discovery context]; People v. Cooper (1960) 53 Cal.2d 755, 771 [discovery context]; Alhambra, supra, 205 Cal.App.3d 1118, 1134 [discovery context].) Or, alternatively, is the request premature? (See People v. Lopez (1963) 60 Cal.2d 223, 247 [“[u]nder certain circumstances, delayed disclosure [via discovery] may well be appropriate“].)
(6) Would the “time required to produce the requested information . . . necessitate an unreasonable delay of defendant‘s trial“? (Alhambra, supra, 205 Cal.App.3d at p. 1134 & fn. 17 [discovery context]; see also Kling, supra, 50 Cal.4th at p. 1087 [noting the People‘s right to a speedy trial].)
(7) Would “production of the records containing the requested information . . . place an unreasonable burden on the [third party]“? (Alhambra, supra, 205 Cal.App.3d at p. 1134 [discovery context]; see also Facebook (Hunter), supra, 4 Cal.5th at pp. 1289–1290 [regarding asserted burdens on a social media provider]; Serrata, supra, 62 Cal.App.3d 9, 15; cf. People v. Kaurish (1990) 52 Cal.3d 648, 686 [criminal discovery may be denied if “the burdens placed on government and on third parties substantially outweigh the demonstrated need“].)
For convenience, we will refer to these seven considerations as the ”Alhambra factors.”
We will review selected prior decisions cited above in order to illustrate key underlying principles, with emphasis on the plausible justification and confidentiality/constitutional rights considerations, which are especially pertinent to the present litigation.
1. The plausible justification factor
a. Ballard
We first articulated the plausible justification consideration in Ballard, supra, 64 Cal.2d 159. There the defendant, a doctor, stood charged with drugging and raping his patient. The prosecution, with the cooperation of the victim, made recordings of telephone conversations in which the defendant incriminated himself. The defendant was granted discovery, and the prosecution also agreed to provide defense counsel with the names and addresses and the statements of witnesses that would be called at trial. But, in addition, the defendant sought to discover the names and addresses of all persons interviewed by the police regarding the charge. (Id., at p. 166.)
We found the trial court properly denied the blanket request for information beyond that already provided to the defendant. We explained that “[a]lthough the defendant does not have to show, and indeed may be unable to show, that the evidence which he seeks to have produced would be admissible at the trial [citations], he does have to show some better cause for inspection than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.” (Ballard, supra, 64 Cal.2d at p. 167, italics added.)
We elaborated: “A defendant‘s motion for discovery must . . . describe the requested information with at least some degree of specificity and must be sustained by plausible justification.” (Id., at p. 167, italics added.) We immediately followed on that same page by quoting a passage from a then-recent law review article by Chief Justice Traynor, which, although not employing the italicized phrase, states: ” ‘A showing [. . .] that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense. . . .’ (Traynor, Ground Lost and Found in Criminal Discovery (1964) 39 N.Y.U. L.Rev. 228, 244; italics added.)” (Ballard at p. 167.)
As this recitation shows, in our first decision articulating the plausible justification standard we measured the defendant‘s stated justification for acquiring the sought information against the legal claims (in that case, asserted violations of the rights to counsel and to remain silent) pursuant to which the defendant urged the information would be relevant. In resolving that plausible justification inquiry we considered the facts as then known, determined the underlying legal claims to be inapplicable on those facts, and hence found no plausible justification for acquiring the sought information to support such a legal claim. An analogous inquiry in the present case concerning defendant‘s stated primary ground for acquiring and inspecting the sought information — that is, to support an assertion of self-defense — calls for an examination of the facts as alleged in the briefs and also as reflected in the preliminary hearing transcript described earlier, in order to assess whether a claim of self-defense is sufficiently viable to warrant the intrusion that would occur if the sought communications were required to be disclosed.
As noted earlier, defendant in the present case asserts two bases for acquiring the sought information. In addition to his primary justification (to help establish a claim of self-defense against Renteria), he also advances a secondary (or, if the primary basis fails, an alternative) justification — to impeach the prosecution‘s anticipated witness, Renteria, by highlighting his character for untruthfulness and violence. In this regard, Hill, supra, 10 Cal.3d 812, which we decided eight years after Ballard, is enlightening. As explained below, in Hill we found that the defendant had indeed shown plausible justification to acquire such impeachment evidence — but that he had not established justification under other theories.
The defendant in Hill, charged with attempted burglary, sought to discover (1) any public records of felony convictions that might exist regarding the prosecution‘s prospective key witness against him — in order to impeach that witness; and (2) any general arrest and detention records that might exist regarding the prosecution‘s prospective key witness against him — in order to argue that the prosecution witness, who had reported the alleged crime to the police, in fact committed that underlying crime.8 The trial court denied both aspects of discovery on the ground that the defendant had not shown that any such records existed concerning the witness. (Id., at p. 816.)
We first addressed the request for records of felony convictions, in order to impeach. We observed that ” ‘[i]n criminal cases, the trial court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest.’ ” (Hill, supra, 10 Cal.3d at p. 817.) Then we highlighted the plausible justification factor, as first articulated in Ballard, and we quoted again from the same passage in Chief Justice Traynor‘s article in the course of explaining that trial courts have “discretion to deny discovery in the absence of a showing which specifies the material sought and furnishes a ‘plausible justification’ for inspection.” (Ibid., italics added.)
We found that the defendant had adequately described the sought felony conviction records, and we acknowledged that the evidence code allows for such felony records to impeach a witness‘s credibility. (Hill, supra, 10 Cal.3d at p. 817.) We determined that the defendant could not ” ’ “readily obtain the
We then turned to the defendant‘s additional request for access to and inspection of any “arrest and detention” records, which as noted earlier the defendant sought in order to probe whether the prospective witness, and not the defendant, committed the charged attempted burglary. (Hill, supra, 10 Cal.3d at p. 822.) We acknowledged that the prospective witness‘s ” ‘rap sheet,’ if it exists, might contain information regarding arrests or detentions for prior burglaries or attempted burglaries, and such information conceivably might lead to the discovery of evidence of prior offenses by [the prospective witness] having a distinctive modus operandi common to both the prior offenses and the offense with which [the defendant] is charged.” (Ibid.) But, we held, “[e]ven if it be assumed that such evidence would be admissible as tending to show that [the prospective witness] committed the instant offense, a matter that might affect his credibility by showing he had a motive to lie, it does not follow that [the trial court] erred in denying discovery of the arrest and detention records, if any.” (Ibid.) We explained: ”In view of the minimal showing of the worth of the information sought and the fact that requiring discovery on the basis of such a showing could deter eyewitnesses from
As this recitation from Hill again shows, each legal claim that a defendant advances to justify acquiring and inspecting sought information must be scrutinized and assessed regarding its validity and strength. In Hill, the defendant‘s request to acquire and inspect any existing public records of felony convictions in order to facilitate proposed impeachment of the prospective witness was, under the circumstances, supported by plausible justification because: it was adequately described; the prospective (and sole) witness‘s credibility was likely to be critical to the outcome, that person was particularly subject to impeachment, and the information sought was relevant to that impeachment; and it reasonably appeared that such information would assist in preparation of the defense. But the defendant did not meet the same plausible justification test concerning his effort to acquire and inspect any existing, and even more sensitive, records concerning mere arrests or detentions, which he sought in order to attempt to shift blame from himself to the prospective prosecution witness. As noted, we found only a “minimal showing of the worth of” that information, and expressed concern that requiring discovery of such sensitive information (contrasted with disclosure of public records of actual felony convictions) based on such an insubstantial showing could have the undesirable effect of “deter[ring] eyewitnesses from reporting crimes.” (Hill, supra, 10 Cal.3d at p. 822.)
Consistent with the approach undertaken in Ballard and Hill, in assessing the present defendant‘s primary basis for plausible justification to acquire and inspect the sought restricted posts and private messages (to support a claim of self-defense), an appropriate inquiry would focus on the facts as alleged in
Likewise, in assessing the present defendant‘s secondary (and, if the self-defense-claim justification fails, alternative) basis for plausible justification in the present case — to impeach prospective witness Renteria — an appropriate inquiry would consider whether such a significant intrusion is warranted and necessary to facilitate the contemplated impeachment. The analysis should be informed by the circumstance that defendant has already acquired, not only Renteria‘s public posts (which, defendant asserts, contain substantial relevant information) but also, and perhaps most importantly, Renteria‘s probation reports (see ante, fn. 5), which in turn detail his prior convictions and contain other substantial related impeachment information. Moreover, as explained below, when as here a subpoena seeks restricted social media posts and private messages, in the absence of an apparent relationship between the underlying crime and such communications, a trial court should examine even more closely the proffered showing of plausible justification in support of such a privacy intrusion.
2. A third party‘s confidentiality or constitutional rights and “protected governmental interests”
As the Court of Appeal stressed in Pacific Lighting, supra, 60 Cal.App.3d 552, when considering the enforceability of a criminal defense subpoena duces tecum, “[t]he protection of [the subject of a subpoena‘s] right to be free from unreasonable search and seizure constitutes a ‘legitimate governmental interest.’ Thus, though ‘ordinarily’ a criminal defendant may be entitled to pretrial knowledge where ‘it appears reasonable that such knowledge will assist him in preparing his defense,’ [citation] the protection of the witness‘s constitutional rights requires that the ’ “plausible justification” for inspection’ [citation] be so substantiated as to make the seizure constitutionally reasonable.” (Id., at pp. 566–567.) When, as in the present case, a litigant seeks to effectuate a significant intrusion into privacy by compelling production of a social media user‘s restricted posts and private messages, the fourth Alhambra factor — concerning a third party‘s confidentiality or constitutional rights and protected governmental interests — becomes especially significant.
It is important, as an initial matter, to bear in mind the substantial differences underlying the justifications offered in the two cases that we have encountered to date — Facebook (Hunter), supra, 4 Cal.5th 1245 (see also Facebook (Hunter) II, supra, 46 Cal.App.5th 109, rev. granted)), and the present matter.
In the present case, by contrast, it is questionable whether there is any similar substantial connection between the victim‘s social media posts and the alleged attempted murder. Moreover, although it is always possible that material in a prior or subsequent social media post may be relevant to something that the defendant would like to rely upon, the requirement that a social media user or a social media provider disclose social media posts, even to a judge for ex parte review (see
Finally, we note that in the present circumstances, the California Constitution, as amended to incorporate Marsy‘s Law, calls for yet additional special inquiry. (
V. THE UNDERLYING HEARING ON THE MOTION TO QUASH, AND THE COURT‘S RULING UPHOLDING THE SUBPOENA TO FACEBOOK
The superior court judge who conducted the hearing on the motion to quash (and who had not been involved in any of the earlier proceedings in this matter) denied the motion, finding good cause for the subpoena. Neither
Specifically, there was no express mention of, let alone explicit assessment concerning, the primary good cause factor — whether defendant had shown plausible justification for acquiring crime victim Renteria‘s restricted posts and private messages. Neither did the court explicitly address the potential overbreadth of the subpoena. Nor did the court adequately consider defendant‘s ability to obtain the material from other sources, such as the messages’ recipients, or friends who could view Renteria‘s restricted posts and private messages. The court did consider, and evidently credited, defense counsel‘s assertion that Renteria would not be a reliable source for handing over the communications. Yet nothing in the record suggests that the court assessed, or balanced, any confidentiality or constitutional interests or privileges that Renteria might have, including possible rights under Marsy‘s law, in securing notice and avoiding cooperation with defense counsel and disclosure of his restricted posts and private messages.
The absence of such a record of consideration in the present case is somewhat understandable. At the time of the hearing, Alhambra‘s useful seven-factor balancing summary, although having been set forth nearly 30 years prior, had gone uncited except for in the 2015 edition of Justice Hoffstadt‘s California Criminal Discovery treatise in a passage addressing a trial court‘s in camera review of produced documents. (See Hoffstadt on Criminal Discovery, supra, at pp. 390–391.)
Nevertheless, as shown above, a number of long-established decisions have discussed, quite extensively, several of these factors, including the two that deserve special attention in the present circumstances — plausible justification, and confidentiality or constitutional interests that a person in Renteria‘s position might have. In other words, as these and related cases demonstrate, the Alhambra framework is built upon a firm foundation, and the Alhambra decision itself is innovative only in the sense that it collected these principles in a handy list.
As recently acknowledged by the Court of Appeal in Facebook (Hunter) II, supra, 46 Cal.App.5th 109, 119–121 (rev. granted), the seven Alhambra factors are relevant, and properly should be considered by a trial judge, when ruling on a motion to quash a subpoena directed at a third party. It is especially at that point in the subpoena process that the judicial officer should assess and balance, not only the important plausible justification factor, but also all of the other factors — including the adequacy of the description/overbreadth, availability of the sought material from other
VI. PROBLEMS RAISED BY PROCEEDING EX PARTE AND UNDER SEAL — AND RELATED “BEST PRACTICES” CONSIDERATIONS
In addition to failing to clearly apply the Alhambra factors, the trial court also chose to proceed ex parte and under seal. We have acknowledged in cases such as Kling, supra, 50 Cal.4th 1068, that in criminal proceedings, by virtue of
The balancing called for in circumstances such as these can be complex and nuanced. For example, as noted, defendant stresses his right to acquire and present all relevant evidence in his defense, and insists he has established good cause to invade Renteria‘s privacy interests by acquiring his restricted posts and private communications via his underlying subpoena. Yet the district attorney asserts that victim Renteria‘s constitutional rights, including under Marsy‘s Law, were violated when the trial court ordered Facebook to preserve the information, and then issued the subpoena, without giving the victim or the People adequate notice and an opportunity to be heard concerning issuance of the subpoena.
In the trial court in present case, defense counsel was allowed to proceed ex parte and to file under seal the key declaration and exhibits opposing the motion to quash. Accordingly neither the district attorney nor Facebook was permitted to learn what public posts defendant relied upon — and neither was in a position at the hearing concerning the motion to quash to address whether those posts support a finding of good cause for the underlying subpoena. When a trial court does conclude, after carefully balancing the respective considerations, that it is necessary and appropriate to proceed ex parte and/or under seal, and hence to forego the benefit of normal adversarial testing, the court assumes a heightened obligation to undertake critical and objective inquiry, keeping in mind the interests of others not privy to the sealed materials.
Finally, we caution that even when other entities are not excluded from full participation in the proceedings, a trial court ruling on a motion to quash — especially one that, like this, involves a request to access restricted social media posts and private messages held by a third party — should bear in mind the need to make a record that will facilitate appellate review. We acknowledge that the trial court below was not required to issue a written statement of decision concerning its ruling on the motion. (See In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040 [
Defendant insists in his most recent briefing, and at oral argument, that the underlying subpoena is supported by good cause, and that although its scope should be narrowed, the subpoena is generally enforceable. After recently being permitted to see the unsealed declaration and supporting exhibits, Facebook and the district attorney both contend the subpoena is not supported by good cause. The trial court, having allowed defendant to proceed ex parte and under seal, has not considered the input that we have obtained from the district attorney and Facebook.
We review a ruling on a motion to quash, like other discovery orders, for abuse of discretion. (Pitchess, supra, 11 Cal.3d at p. 535; see also Facebook (Hunter) II, supra, 46 Cal.App.5th at p. 118, rev. granted.) We conclude that the trial court below abused its discretion when ruling on the motion to quash by failing to apply the seven-factor Alhambra test. Under these circumstances we find it prudent to afford the trial court an opportunity to consider the good cause issue anew, this time with full participation by all three parties.
Facebook nevertheless urges, and the district attorney suggests, that we should overlook questions concerning the enforceability of the underlying subpoena and proceed to address and decide the various important underlying substantive legal issues discussed in the briefs. We recognize that the parties have undertaken substantial efforts to explore the Fifth and Sixth Amendment issues implicated in this case, as well as the various theories under which a proper state subpoena might be enforced against Facebook without resolving those constitutional issues. In light of the potential significance of all of these issues, however, we conclude it is preferable to reserve judgment on these questions until we can be confident that we are dealing with an otherwise enforceable subpoena. Accordingly, in light of questions concerning whether the underlying subpoena is supported by good cause, we will direct the Court of Appeal to vacate the trial court‘s denial of the motion to quash and instruct the trial court to reconsider that motion.
VIII. WHETHER FACEBOOK IS COVERED UNDER THE SCA
Although we will not decide the important constitutional and related issues raised in the earlier briefs, we briefly address Facebook‘s suggestion that in Facebook (Hunter), supra, 4 Cal.5th 1245, we resolved in its favor the question of whether it is covered and bound by the SCA.
Facebook raises this argument in response to the assertion, jointly advanced by defendant and the district attorney, that Facebook‘s business model places it outside key provisions of the SCA and renders it subject to an enforceable state subpoena. The theory suggested by defendant and the district attorney, which is premised on Facebook‘s Terms of Service15 and Data Policy,16 is that Facebook‘s business model of mining its users’ communications content, analyzing that content, and sharing the resulting information with third parties to facilitate targeted advertising, precludes it from qualifying as an entity subject to the SCA. That law, defendant and the district attorney observe, covers only two types of entities — (1) those that provide “electronic communication service” (ECS) and (2) those that provide “remote computing service” (RCS) — and the law bars such entities from divulging to others the contents of their users’ communications.17
Defendant and the district attorney assert that Facebook is neither a provider of ECS nor of RCS under the provisions of the Act.
As noted, Facebook suggests our opinion in Facebook (Hunter) supra, 4 Cal.5th 1245, and decisions by other courts in prior litigation, have determined that Facebook operates as a provider of either ECS or RCS, and hence is covered by the Act. We will not assess the underlying merits of the business model thesis. Yet we observe that, contrary to Facebook‘s view, we have not determined that Facebook is a provider of either ECS or RCS under the Act.
Our opinion in Facebook (Hunter) supra, 4 Cal.5th 1245, undertook no substantive analysis concerning whether the entities in that case (including Facebook) provide ECS or RCS with regard to the communications there at issue. Because (1) prior decisions had found or assumed that Facebook and analogous social media entities provide either ECS or RCS with regard to the type of sought posts and/or messages at issue in those prior cases and in Facebook (Hunter), and (2) neither party in Facebook (Hunter) contested the issue, we stated that we saw “no reason to question [that] threshold determination.” (4 Cal.5th at p. 1268.) Accordingly, we assumed, but did not decide, that Facebook provided either ECS or RCS with regard to the communications sought — and hence was covered by the Act‘s general ban on disclosure of content by any entity providing those services. (4 Cal.5th at p. 1268 & fn. 26.) In so proceeding, we did not consider whether, under the business model theory subsequently proffered in this case, Facebook provides either ECS or RCS, or neither, under the Act. That potentially dispositive issue remains unresolved.18
IX. CONCLUSION
We direct the Court of Appeal to remand this matter to the trial court with instructions that the trial court vacate its order denying the motion to quash and reconsider the motion, with full participation by the parties, by assessing and balancing the seven Alhambra factors outlined ante, part IV.19
CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
FACEBOOK, INC. v. SUPERIOR COURT
S245203
Concurring Opinion by Chief Justice Cantil-Sakauye
As observed in the majority opinion, Lance Touchstone, defendant in the prosecution below (defendant), and intervener San Diego County District Attorney (the district attorney) jointly advance a business model theory that, they contend, places Facebook, Inc., outside the ambit of a 34-year-old federal law, the Stored Communications Act (
This contention, which is grounded on Facebook‘s Terms of Service2 and Data Policy,3 posits that the mining, analyzing, communicate with others. This can include information in or about the content you provide . . . . Our systems automatically process content and communications you and others provide to analyze context . . . . [¶] . . . . [¶] We also receive and analyze content, communications and information that other people provide when they use our Products.” (Id., at pt. I, What kinds of information do we collect?/ Things you and others do and provide/ Information and content you provide/ Things others do and information they provide about you.) Thereafter, Facebook‘s Data Policy explains, it employs users’ mined and analyzed content to facilitate various services, including to “[p]rovide, personalize, and improve our Products [¶] . . . and make suggestions for you” by showing users “personalize[d] ads, offers, and other sponsored content.” (Id., at pt. II, How do we use this information?/ Provide, personalize and improve our Products/ Ads and other sponsored content.) In that regard, Facebook relates, it shares information about its users’ content with “third-party partners . . . which [in turn] makes it possible to operate our companies and provide free services to people around the world.” (Id., at pt. III, How is this information shared?/ Sharing with Third-Party Partners.) Facebook states that it “do[es]n‘t sell any of your information to anyone,” but instead “[s]har[es] with,” “work[s] with,” and “provide[s]” that information to “third-party partners.” (Ibid., italics added.) Specifically, for some partners, it supplies “aggregated statistics and insights that help people and businesses understand how people are engaging with their posts . . . and other content.” (Id. at pt. III, Partners who use our analytics services.) And for advertisers, Facebook explains: “We provide . . . reports about the kinds of people seeing their ads and how their ads are performing.” (Id., at pt. III, Sharing with Third-Party Partners/ Advertisers.) At the same time, Facebook stresses: “[W]e don‘t share information that personally identifies you (information such as your name or email address that by itself can be used to contact you or identifies who you are) unless you give us permission. For example, we provide general demographic and interest information to advertisers (for example, that an ad was seen by a woman between the ages of 25 and 34 who lives in Madrid and likes software engineering) to help them better understand their audience. We also confirm which Facebook ads led you to make a purchase or take an action with an advertiser.” (Ibid.)
and sharing activities that
Facebook does not contest that it mines, analyzes, and shares with third party advertisers information about content found in, among other things, its users’ communications — including restricted posts and private messages. Facebook maintains, however, that these practices do not remove it from the applicable provisions of the SCA.
I outline below the key statutes and summarize defendant‘s and the district attorney‘s arguments, as well as Facebook‘s responses.
I. OVERVIEW OF THE BUSINESS MODEL ARGUMENT: ASSERTION THAT FACEBOOK DOES NOT PROVIDE “ECS” OR “RCS” — AND HENCE IS NOT PRECLUDED BY THE SCA FROM COMPLYING WITH A VIABLE STATE SUBPOENA
As we observed in Facebook v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1264–1265, the SCA covers, and prohibits disclosure of, stored and/or electronic communications by only two specific types of entities — (1) those that provide “electronic communication service” (ECS), and/or (2) those that provide “remote computing service” (RCS).4 (
To understand the business model argument, it is necessary to first review the SCA‘s statutory definitions of ECS and RCS.
II. ECS AND RCS AS DEFINED BY THE SCA
ECS is defined as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” (
RCS, by contrast, is defined as “the provision to the public of computer storage or processing services by means of an electronic communications system.” (
The next parts of section
This crucial passage is hardly a model of clarity. It appears to express two related conditions in order to qualify as a communication held by an entity that provides RCS: (1) the user‘s data must be transmitted to the provider “solely for the purpose of providing storage or computer processing services“; and (2) the entity must “not [be] authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.” (§
turn, generally barred from disclosing communications content — and hence the entity would be subject to a viable subpoena duces tecum.
It is important to recognize that with regard to both general directives against disclosure by an entity providing ECS or RCS, “contents” is broadly defined by the SCA to “include[] any information concerning the substance, purport, or meaning of [the] communication.” (
III. THE ACT‘S ECS AND RCS CATEGORIES SHOULD BE UPDATED OR REPLACED BY CONGRESS
Courts and commentators have long acknowledged that, as applied to contemporary entities, the 34-year-old SCA is woefully outdated. Eighteen years ago the decision in Konop v. Hawaiian Airlines (9th Cir. 2002) 302 F.3d 868, observed that because the SCA “was written prior to the advent of the Internet and the World Wide Web . . . , the . . . statutory framework is ill-suited to address modern forms of communication,” and hence courts “have struggled to analyze problems involving modern technology within the confines of this statutory framework.” Moreover, the court emphasized, “until Congress brings the laws in line with modern technology, protection of the Internet and websites . . . will remain a confusing and uncertain area of the law.” (Konop, at p. 874.)7 Seven years ago, a federal district court wrote, in evident frustration: “Most courts, including this one, would prefer that Congress update the statute to take into account the invention of the Internet.” (Ehling v. Monmouth Hosp. Corp. (D.N.J. 2013) 961 F.Supp.2d 659, 666, fn. 2.)
Because Congress has not acted to alter the relevant provisions of the SCA despite the pleas of courts and commentators that it do so, litigants and judges have no option but to apply the Act‘s outdated definitions to the evolved and still developing technology and entities of today.
IV. THE PARTIES’ CONTENTIONS REGARDING WHETHER, UNDER THE ACT, FACEBOOK PROVIDES ECS, RCS, OR NEITHER
A. Whether Facebook Provides ECS
Defendant and the district attorney implicitly assert that, even if Facebook does to some extent provide electronic storage that is “temporary [and] intermediate . . . incidental to the electronic transmission thereof” (
Facebook, for its part, asserts that it qualifies as a provider of ECS because communications such as those sought in this case are either in “temporary or intermediate storage” (
Facebook relies on a number of decisions finding or stating that it qualifies as a provider of ECS. (Maj. opn., ante, at p. 41, fn. 18.) But as observed in In the Matter of the Application of the United States of America for a Search Warrant (D.Or. 2009) 665 F.Supp.2d 1210, 1214, whether an entity provides ECS, or RCS, or neither, is a context-dependent inquiry: The “distinction serves to define the service that is being provided at a particular time (or as to a particular piece of electronic communication at a particular time), rather than to define the service provider itself.” (Italics added.)9
Consistent with this understanding, other federal decisions have held that when an entity analogous to Facebook (in those cases, providers of e-mail and text messages) retains a communication beyond the initial sending and provisional backup stage, then once that message has been opened/accessed, the entity no longer acts as a provider of ECS but rather transforms into a provider of RCS.10 Under the reasoning of these cases, the same would seem to apply concerning Facebook — in which event its conduct should be examined under RCS, rather than ECS standards. At least one court appears to have so held. (Crispin, supra, 717 F.Supp.2d 965, 987 [regarding private messages that had been opened, Facebook operates not as a provider of ECS, but as a provider of RCS].)
Thus, whether Facebook should be found to qualify as a provider of ECS under the SCA appears open to question. Moreover, assuming that Facebook might qualify initially or provisionally as an entity that provides ECS, it seems that Facebook may also be obligated to establish its qualification as an entity that provides RCS with respect to stored communications sought in a viable state subpoena.
B. Whether Facebook Provides RCS
By the language and conditions established in section
Consistent with these views, defendant and the district attorney both assert that in light of Facebook‘s business model of mining, analyzing, and sharing information about its users’ communications content, Facebook cannot qualify under section
information about its users’ mined and analyzed content for sharing with third party advertisers, Facebook goes substantially beyond the limited authorization that would be necessary for it “solely” to provide “storage and computer processing.” This, they assert, shows that Facebook is “authorized to access the contents of . . . communications for purposes of providing . . . services other than storage or computer processing” — and demonstrates that Facebook is authorized to act in precisely the manner the statute says it must not if it wishes to qualify as a provider of RCS that is prohibited from disclosing its users’ communications content. Accordingly, they argue, Facebook cannot qualify as an entity that provides RCS under the Act and thus cannot raise the SCA as a shield against being forced to comply with a viable state subpoena.
Facebook responds that everything it is authorized to do — including all mining, analyzing, and sharing of its licensed information about its users’ communications — constitutes “computer processing services,” and hence is contemplated by and covered under the Act in
Finally, Facebook insists, “every court to consider” whether Facebook itself qualifies as an entity that provides RCS (or ECS, or both) has held that it meets at least one if not both tests. Yet, as the majority opinion observes, it appears that no court has ever been asked to address, with regard to Facebook itself (or, for that matter, any analogous entity), the specific claim advanced by defendant and the district attorney here: That by virtue of its business model (under which it mines, analyzes, and shares licensed information about its users’ communications), and because Facebook has motivating purposes beyond facilitating temporary storage during transmission, or backup of its users’ communications, Facebook falls outside Congress‘s contemplation of an entity that provides RCS or ECS. Indeed, as the majority opinion observes, ante at page 41 and footnote 18, the issue remains unresolved.
C. Tentative Assessment of Facebook‘s Policy Arguments
In addition to contending that the statutory language supports its status as an entity that provides ECS or RCS, Facebook asserts that policy considerations demonstrate it must be found to so qualify because concluding otherwise would (1) unduly disrupt and impair technological innovation, (2) disappoint users’ settled privacy expectations, and (3) frustrate its ability to protect against malware.
The first two contentions certainly should give a court pause before holding that Facebook and similar entities fall outside
Neither does it appear likely that law enforcement actors would attempt to compel entities to disclose users’ communications with, as Facebook asserts in its briefing, “a mere subpoena“; other laws and authority already protect against that.13 Nor does it seem that a narrower construction of the phrase would leave Facebook and similar entities unable to protect against malware.14 Finally, as a matter of policy, a holding finding Facebook to lie outside the SCA might have the beneficial effect of spurring long-needed congressional adjustment of the outdated Act, as repeatedly advocated by courts and commentators. (See ante, pt. III.)
V. CONCLUSION
For reasons outlined above, the business model theory deserves additional and focused attention. Perhaps the issue will arise on remand below, if the trial court again determines — this time after full and open participation by the parties and consideration of the good cause factors discussed in the majority opinion — that the underlying subpoena, as it exists or as it might be revised,
CANTIL-SAKAUYE, C. J.
Concurring Opinion by Justice Cuéllar
Lance Touchstone served a subpoena on Facebook, but the company denies it has any responsibility to honor it because it claims protection under the federal
Congress enacted the SCA in 1986 to create a “fair balance between the privacy expectations of citizens and the legitimate needs of law enforcement.” (H.R.Rep. No. 99-647, 2d Sess., p. 19 (1986).) To this end, the SCA “creates limits on the government‘s ability to compel [network service] providers to disclose information in their possession about their customers and subscribers.” (Kerr, A User‘s Guide, supra, 72 Geo.Wash. L.J. 1208, 1212, fn. omitted.) Yet the SCA does not apply to all providers storing online communications. As the majority opinion explains, the only entities covered are those providing “electronic communication service” or “remote computing service.” (Maj. opn., ante, at p. 40; see also Kerr, supra, at p. 1214 [“The SCA is not a catch-all statute designed to protect the privacy of stored Internet communications“].) Courts — including our own — have nonetheless assumed that social media entities such as Facebook are regulated by the SCA. (See, e.g., Facebook v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1268, fn. omitted [“We see no reason to question [the] threshold determination” that Facebook is “governed by . . . the SCA“].)
Why that assumption deserves to be probed is something this case starkly illustrates. Touchstone and the San Diego County District Attorney devote a substantial portion of their briefing to a theory that no court appears to have addressed: that because Facebook‘s terms of service grant Facebook legal rights to users’ communications content, and because Facebook shares users’ data with third parties, the company doesn‘t fall within the ambit of the SCA. For this reason, they argue, Facebook may not rely on the SCA as a shield that protects it from complying with a subpoena seeking users’ communications.
CUÉLLAR, J.
Notes
We also note that although most decisions phrase this factor as “plausible justification,” in Kling, supra, 50 Cal.4th at page 1075, we referred to ” ‘a plausible justification or a good cause showing of need,’ ” quoting the lead opinion in Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045 (Alford), which used that phrasing. Alford in turn cited to Barrett, supra, 80 Cal.App.4th at pages 1320-1321, which, in footnote 7, employed the disjunctive phrasing. Earlier, the appellate court‘s decision in Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 695, also employed the disjunctive phrasing, while citing to our own decision in Hill, supra, 10 Cal.3d at page 817, which, like our earlier decisions in Ballard, supra, 64 Cal.2d at page 167, and Joe Z., supra, 3 Cal.3d at page 804, spoke only of “plausible justification.”
On reflection, we believe that Justice Hoffstadt‘s phrasing, reflecting that of most other cases (see, e.g., those cited in the text immediately above), is correct. The plausible justification consideration is but one (albeit the most significant) of multiple factors that, together, reflect a global inquiry into whether there is good cause for a criminal subpoena. It is included within the overall good-cause inquiry and is not an alternative to that inquiry. Accordingly, we decline to employ the disjunctive phrasing used in Kling, Alford, Barrett, and Hinojosa.
See Free at What Cost?, supra, 98 Geo. L.J. at page 1214 [“The Act‘s RCS privacy protections require that ‘storage or computer processing’ be the sole reason that a customer transmits her data to the cloud provider” but “[w]hen data is also shared with the cloud provider to facilitate contextual advertising, this requirement is not satisfied“; moreover, “[t]he Act . . . requires that the cloud provider . . . be authorized to access the customer‘s data [only] to provide the processing or storage service” — yet “by agreeing to share her data with the cloud provider for contextual advertising purposes, this additional requirement is unfulfilled“]; see also Katten, Note, Cloudy Privacy Protections: Why the Stored Communications Act Fails to Protect the Privacy of Communications Stored in the Cloud (2011) 13 Vand. J. Ent. & Tech. L. 617, 640, fn. omitted (Cloudy Privacy Protections) [asserting that “when a customer consents to a user agreement which permits the service provider to access his data to provide targeted advertising, the user‘s emails may not be protected [under the SCA] as communications maintained by” an ECS or RCS]; Zimmeck, The Information Privacy Law of Web Applications and Cloud Computing (2012–2013) 29 Santa Clara Computer & High Tech. L.J. 451, 472 (fn. omitted) [“if the service provider and the user agreed that the provider can access the communication contents of users, for . . . purposes of contextual advertising, such contents can be disclosed” because such an entity is not acting as an RCS]; Fairfield & Luna, Digital Innocence (2014) 99 Cornell L.Rev. 981, 1062–1063 [observing that “Google (and many other free e-mail providers) scan e-mails for purposes of targeted advertising” and that resulting user information is not stored ” ‘solely for the purpose of providing storage or computer processing services’ ” — hence “[o]n this statutory reading” the SCA would not apply]; Raquel, Comment, Blue Skies Ahead: Clearing the Air for Information Privacy in the Cloud (2015) 55 Santa Clara L.Rev. 467, 495–496 (Blue Skies Ahead) [concluding that when “customers authorize access to their data for . . . advertising services in exchange for free access to the cloud services,” the entity does not qualify as a provider under the SCA and “the data will be subject to disclosure“].