Social media may have to comply with subpoenas

The state Supreme Court struck a major blow Thursday to social media companies that claim they do not have to comply with criminal subpoenas under a 34-year-old federal law prohibiting the disclosure of messages by those that provide electronic communication services.

Remanding an attempted murder case back to trial court to determine whether Facebook has to produce records, California Chief Justice Tani Cantil-Sakauye dismissed arguments that the social media giant can use the Stored Communications Act as a shield against enforcement of subpoenas because it's authorized to access user information as part of its business model.

"When social media users authorize an entity to access their data and communications in order to facilitate targeted advertising, the entity may not, or does not, qualify under the SCA as one that provides [remote computer services] -- and thus the entity is not barred from disclosing such content," she wrote.

The justices declined to definitively rule on the issue since the subpoena might not be enforceable for other reasons.

Facebook did not respond to requests for comment.

Michael McMahon of the California Public Defenders Association, which filed a friend-of-the-court brief in the case, praised the decision for suggesting that the "SCA doesn't apply to Facebook, or does in some limited fashion." He predicted the court would finally decide the matter when it gets an appropriate case to do so.

"We certainly have Facebook on the ropes," he said.

The trial court will reconsider Facebook's motion to quash the subpoena seeking potentially exculpatory evidence from the victim's social media posts, according to the order. Facebook, Inc. v. Superior Court of San Diego County, 2020 DJDAR 8607 (Aug. 13, 2020).

The case concerns a 2016 shooting in which San Diego prosecutors charged Lance Touchstone with the attempted murder of Jeffrey Renteria, his sister's boyfriend.

Since the shooting, Renteria allegedly posted on social media accounts about the impact of drugs on his mental health and his "desire to rob and kill people," according to court filings. Touchstone requested prosecutors produce the victim's Facebook records, which was denied.

The defendant subpoenaed Facebook for the potentially exculpatory evidence and San Diego County Judge Kenneth So ordered them produced. His ruling was overturned by the 4th District Court of Appeal.

Touchstone argued he needs access to the content to prepare his defense, namely to substantiate claims of self-defense and to impeach the victim's character. He claimed his constitutional right to a fair trial trumps Facebook's and Renteria's privacy interests.

Facebook, as in thousands of other cases, maintained the Stored Communications Act bars it from disclosing private content of its users' accounts in response to a subpoena. It urged the state Supreme Court to settle the issue since social media companies often find themselves forced to participate in such disputes, wasting court resources and delaying proceedings.

Apple and Google filed friend-of-the-courts briefs siding with Facebook.

Calling into question the defendant's justification to access the records, the justices found numerous discrepancies in the defense's recitation of facts in its petition for review with the preliminary hearing testimony and related exhibits.

With regard to the defense's claim that the victim "burst through the door" and "lunged at" Touchstone looking to harm him, the justices noted that Renteria testified he was only holding a smartphone when he entered the house. He was shot shortly after taking two pictures of the defendant and his sister, the justice said.

Cantil-Sakauye wrote, "This evidence is in tension with the narrative that defense counsel represented to all three levels of courts until very recently."

The justices concluded that the defendant's self-defense justification for obtaining access to Renteria's posts and private messages is problematic.

Alternate Public Defender Katherine Tesch, representing Touchstone, did not respond to requests for comment.

If there was proper standing to seek Renteria's social media posts, Cantil-Sakauye was skeptical Facebook can claim exemption from subpoenas under the Stored Communications Act, which prohibits disclosure of information by those that provide electronic communication services or remote computing services.

Facebook claimed it's protected under the latter category as an entity providing "computer processing services," which it said was meant by Congress to be construed broadly.

But the company's business model likely removes it from coverage under the federal law since it's authorized to access user communications for purposes other than storage or computer processing, according to the ruling. The justices pointed to Facebook's policy of mining, analyzing and sharing information.

While it was able to escape a final ruling on it favorite defense to dodge criminal subpoenas, according to McMahon, he said "the undoing of Facebook's assertion that they're controlled by the SCA [will be] their own terms of services."

The issue, McMahon added, might ultimately be decided by Congress if it modernizes the 1986 law.

"This opinion may even bring Facebook into the fold saying 'yeah we need updated laws,'" he said.

In another case extensively cited in Thursday's ruling, the state Supreme Court in 2018 ordered Facebook, Instagram and Twitter to produce private postings to the defense in a murder trial. The ruling noted that the judge strongly justified access.

Only law enforcement could force such companies to turn over such content in the past.