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 stored communications act. Show all posts
Showing posts with label stored communications act. 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.
Friday, May 11, 2018
The Taxman Commeth
City & Cnty. of S.F. v. Homeaway.com, No. A150385 (D1d4 Mar. 28, 2018)
In investigating tax evasion, San Francisco’s tax collectors served a subpoena for user data on an Internet home rental listings site. The superior court compelled Site to produce the records. Site says that violates the Stored Communications Act and the constitutional rights of its users.
In investigating tax evasion, San Francisco’s tax collectors served a subpoena for user data on an Internet home rental listings site. The superior court compelled Site to produce the records. Site says that violates the Stored Communications Act and the constitutional rights of its users.
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.
Tuesday, November 11, 2014
There's No Implied Consent Under the Stored Communications Act, But Coerced Consent Is AOK
Negro v. Superior Court, No. H040146 (D6 as modified Nov. 18, 2014)
Generally, the Stored Communications Act, 18 U.S.C. §§ 2701–12, prohibits the provider of an electronic communications service from divulging the contents of communications stored on its service. This is why you ordinarily can’t subpoena Google for the contents of your opponent’s gmail account, which is just what the real party did in this writ case.
There is an exception, however, for when the subscriber gives its consent. But the consent cannot be implicit. It must be real consent-in-fact. Thus, to the extent the trial court here denied a motion to quash based on implicit consent by the subscriber, it erred.
That said, courts have nevertheless recognized that parties to litigation can be compelled by the court to give their consent, even though that doesn’t jibe with the concept of consent as commonly understood. Here, after the petitioner’s motion to quash was denied, he was ordered by a Florida court to consent to Google’s disclosing his gmail to the real party—his opponent in that litigation. He abided by the order, so there was effective consent to require Google to produce the documents.
Finally, the court rejects Google's argument that the Act immunizes it from participating in third party discovery. Thus, the court here declines to issue a writ requiring the trial court to quash the subpoena.
As a side point, the subscriber’s consent was provided after he filed his writ petition in this case. In relying upon the evidence of consent as a basis to deny the writ, the court notes an exception to the general rule that the record is static on appeal. An appellate court proceeding in mandate can consider all relevant evidence, including facts not existing until after the petition was filed, particularly when the additional evidence may validate an action that would otherwise have to be set aside. Something to keep in mind when engaged in writ practice in a fast-moving and still developing case.
Writ granted, but only to require the trial court to correct its basis for denying the motion to quash.
Generally, the Stored Communications Act, 18 U.S.C. §§ 2701–12, prohibits the provider of an electronic communications service from divulging the contents of communications stored on its service. This is why you ordinarily can’t subpoena Google for the contents of your opponent’s gmail account, which is just what the real party did in this writ case.
There is an exception, however, for when the subscriber gives its consent. But the consent cannot be implicit. It must be real consent-in-fact. Thus, to the extent the trial court here denied a motion to quash based on implicit consent by the subscriber, it erred.
That said, courts have nevertheless recognized that parties to litigation can be compelled by the court to give their consent, even though that doesn’t jibe with the concept of consent as commonly understood. Here, after the petitioner’s motion to quash was denied, he was ordered by a Florida court to consent to Google’s disclosing his gmail to the real party—his opponent in that litigation. He abided by the order, so there was effective consent to require Google to produce the documents.
Finally, the court rejects Google's argument that the Act immunizes it from participating in third party discovery. Thus, the court here declines to issue a writ requiring the trial court to quash the subpoena.
As a side point, the subscriber’s consent was provided after he filed his writ petition in this case. In relying upon the evidence of consent as a basis to deny the writ, the court notes an exception to the general rule that the record is static on appeal. An appellate court proceeding in mandate can consider all relevant evidence, including facts not existing until after the petition was filed, particularly when the additional evidence may validate an action that would otherwise have to be set aside. Something to keep in mind when engaged in writ practice in a fast-moving and still developing case.
Writ granted, but only to require the trial court to correct its basis for denying the motion to quash.
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