State high court asks tough questions on social media privacy

In a case involving a criminal defendant's right to subpoena social media communications of a victim or a witness, the state Supreme Court issued a key opinion on Thursday which could result in a declaration that the law blocking disclosure is unconstitutional.

The court found that under the federal Stored Communications Act, while a criminal defendant may not subpoena social media communications deemed private, such as direct messages, it's possible they may have the right to obtain those deemed public, such as wall posts and tweets.

In what could turn out to be a landmark case, two defendants indicted by a San Francisco grand jury on murder, weapons, and gang-related charges arising from a drive-by shooting sought public and private communications from Facebook Inc., Instagram LLC and Twitter Inc. to prove their innocence.

According to the 53-page, unanimous opinion written by Chief Justice Tani G. Cantil-Sakauye, the defendant's counsel claimed that because inter-gang-related communications occur over social media, such as taunting and threats, it is essential to gather public and private communications created by the homicide victim and a witness for the prosecution.

The high court noted the criminal defendants agreed with the social media providers that the Stored Communications Act prohibits them from releasing at least the private messages and images but argued that violates the accused men's rights under the Fifth and Sixth Amendments. Facebook Inc. v. Superior Court of San Francisco, 2018 DJDAR 4883 (Cal. May 24, 2018).

A San Francisco superior court judge agreed with the defendants and ordered Facebook, Instagram and Twitter to provide the requested information to him in camera. The companies appealed, citing the act, 18 U.S.C. § 2701 et seq., which states: "... a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service."

Last September, a 4th District Court of Appeal ruled in favor of the social media companies, saying a criminal defendant had no constitutional right to alleged victims' social media communications.

The defendants appealed and the high court indicated Thursday its "examination of the act, its history and cases construing it ... raised doubts that Section 2702 of the act draws no distinction between public and restricted communications." However, the court said it did not have a complete record on that question and under what circumstances, if any, even private communications could be subpoenaed. The case was ordered remanded to the trial court.

Janelle Elaine Caywood, trial court counsel for one of the defendants, Lee Sullivan, said this is the first time a state Supreme Court has ever held that a criminal defendant possibly could subpoena any records at all.

"Since about 2008, criminal defense attorneys throughout the country have been trying to subpoena social media records that are exculpatory, and Facebook has refused to comply every step of the way," Caywood said. "However, when law enforcement wants social media records to show that someone is guilty, they turn over everything."

Caywood added, "The case raised more questions than it answered. Does Facebook store deleted content? How do they keep track of user's privacy settings? All kinds of questions."

Joshua S. Lipshutz of Gibson Dunn & Crutcher LLP, who argued before the high court for Facebook and Instagram, was unavailable for comment on the ruling.

A Facebook spokesperson said in an email: "We're pleased with the court's decision to uphold the important privacy protections in the Stored Communications Act. The court's opinion shows that Facebook and other companies acted properly in refusing to disclose people's private content in response to subpoenas from criminal defendants. We will continue to advocate for people's privacy."