Public Posting Is Consent Under the SCA

Facebook v. Superior Court, No. S230051 (Cal. May 24, 2018)

Back in 2017, the Court of Appeal held that the Stored Communications Act prevented a criminal defendant from subpoenaing Facebook and Instagram for copies of the social media posts of a murder victim and witnesses in the case. The Supreme Court granted review, but then independently raised an issue that wasn’t really addressed by the Court of Appeal: The SCA contains an exception, 18 U.S.C. § 2702(b)(3), which permits an electronic communications provider to disclose materials for which the user has consented to disclosure. 

According to the Court here—in a unanimous opinion by the Chief Justice—that should include social media posts that a user has made available to the public, without restrictions. It does not, however, extend to posting whose access is limited only to “friends” or with other restrictions, regardless of how many people are permitted to see it. So the Court reverses the Court of Appeal and remands to the trial court to address a host of issues regarding the scope of consent and the providers’ ability to comply.

Court of Appeal reversed, in part.