Facebook, Inc. v. Superior Court, No. A157143 (D1d5 Mar. 6, 2020)
This is on appeal again following remand from the Supreme Court’s decision in Facebook v. Superior Court.
There, the court held that the Stored Communications Act permits a criminal defendant to subpoena fully public Facebook posts on a consent theory. But that didn’t apply to posts disclosed only to “friends,” no matter how numerous. The court remanded to the Court of Appeal for application of this rule, a determination of whether disclosure of only public posts would be sufficient, an analysis of Facebook’s burden objections, and an exploration of the adequacy of alternatives such as ordering the poster to consent or ordering the DA to serve Facebook with a warrant demanding the non-public materials. The Court of Appeal sent the case back to the trial court for more factual development.
After Facebook abandoned its burden objections, the trial court ordered the whole shebang—public and private—produced. It decided that, in the absence of any burden claim, the defendant’s Sixth Amendment rights overrode whatever SCA and privacy interests that the poster (a witness who allegedly has some credibility issues) might have. Facebook took another writ. And the Court of Appeal again grants and reverses.
From the Court of Appeal’s perspective, the trial court (yet again) jumped the gun. It didn’t do what the Supreme Court said, because focused only on the burden on the rights of the defendant. The Court does agree that ordering the DA to serve a search warrant isn’t a viable option. But the trial court nonetheless failed to consider whether other measures short of wholesale ordering Facebook to make the production could still protect defendant’s rights. It should have considered (a) whether a production of the public posts only would be sufficient; and (b) whether obtaining the posts from the witness or a third party to that communication was a feasible option.
Writ granted.
Showing posts with label facebook. Show all posts
Showing posts with label facebook. Show all posts
Thursday, April 23, 2020
Monday, July 2, 2018
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.
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.
Monday, October 9, 2017
A Stored Communications Act Primer
Facebook, Inc. v. Superior Court, No. D072171 (D4d1 Sept. 26, 2017)
The is a criminal case where the defendant argues, unsuccessfully, that he has a constitutional right to subpoena non-public Facebook posts from his alleged victim’s account, notwithstanding that federal law prohibits Facebook from disclosing that info. I’m not going to get into that.
But the Stored Communications Act, 18 U.S.C. § 2701–12, is something civil litigators should be aware of. It prohibits a person or entity that provides electronic communications or remote computing services from divulging the contents of a communication that is stored, carried, or maintained by that service. § 2702. There are a bunch of exceptions, but a civil discovery subpoena is not one of them. Which is why you can’t subpoena your opponents’ emails directly from Google or AOL or whatever. You need to either demand that stuff from the opponent directly, or get their permission to have the service provide it, which is a permissible exception. See § 2703(b)(3). You can, however, get materials that aren’t the contents of communications, like subscriber information. § 2703(c).
Writ granted.
The is a criminal case where the defendant argues, unsuccessfully, that he has a constitutional right to subpoena non-public Facebook posts from his alleged victim’s account, notwithstanding that federal law prohibits Facebook from disclosing that info. I’m not going to get into that.
But the Stored Communications Act, 18 U.S.C. § 2701–12, is something civil litigators should be aware of. It prohibits a person or entity that provides electronic communications or remote computing services from divulging the contents of a communication that is stored, carried, or maintained by that service. § 2702. There are a bunch of exceptions, but a civil discovery subpoena is not one of them. Which is why you can’t subpoena your opponents’ emails directly from Google or AOL or whatever. You need to either demand that stuff from the opponent directly, or get their permission to have the service provide it, which is a permissible exception. See § 2703(b)(3). You can, however, get materials that aren’t the contents of communications, like subscriber information. § 2703(c).
Writ granted.
Wednesday, September 13, 2017
Sounds More Like Garth Knight to Me
Cross v. Facebook, Inc., No. A148623 (D1d2 Aug. 9, 2017)
Plaintiff here is Jason Cross, aka, Mikel Knight. No, not Michael Knight—a young loner on a crusade to champion the cause of the innocent, the helpless, the powerless, in a world of criminals who operate above the law. It’s Mikel Knight, a performer of really awful Country/Rap music, who (if one believes the internets) goes around the country with his “Maverick Dirt Road Street Team,” using aggressive and sometimes violent tactics to peddle his merch, harass women, and get in all kinds of traffic accidents.
Plaintiff here is Jason Cross, aka, Mikel Knight. No, not Michael Knight—a young loner on a crusade to champion the cause of the innocent, the helpless, the powerless, in a world of criminals who operate above the law. It’s Mikel Knight, a performer of really awful Country/Rap music, who (if one believes the internets) goes around the country with his “Maverick Dirt Road Street Team,” using aggressive and sometimes violent tactics to peddle his merch, harass women, and get in all kinds of traffic accidents.
Subscribe to:
Posts (Atom)