Facebook III

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.