Derrick Hunter and Lee Sullivan were indicted and still await trial, on murder, weapons, and gang-related charges stemming from a drive-by shooting in California which occurred in 2013. Both Defendants served a subpoena duces tecum on Facebook, Instagram and Twitter, seeking public and private content from user accounts of the murder victim and a witness to the alleged crimes. As to Facebook, the subpoena stated “[a]ny and all public and private content,” including, but “not limited to user information, associated email addresses, photographs, videos, private messages, activity logs, posts, status updates, location data, and comments including information deleted by the account holder” for accounts belonging to the murder victim, Jaquan Rice and to the only witness Renasha Lee.

In January 2015, Facebook, Instagram and Twitter moved to quash the subpoenas as violative of the Stored Communications Act (SCA) (18 U.S.C. §§2701-2712). The SCA prohibits electronic communication service providers from releasing a customer’s data without the customer’s consent. (See 18 U.S.C. §§ 2702(a)(1), 2702(b)(3).) For this reason, just about every social networking service in America regularly refuses to produce records containing the content of electronic communications. There are a few exceptions, most notably for law enforcement officers who have a warrant. (See Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D. Mich. 2008).)

The trial court denied the motions to quash. Facebook, Instagram and Twitter appealed arguing that disclosure of the information sought was barred by the SCA. The Defendants opposed, contending that their constitutional rights to present a complete defense, cross-examine witnesses, and a fair trial prevailed over the privacy rights of account holders under the SCA. In an offer of proof as to Lee’s social media records, defendant Sullivan alleged that the records would demonstrate Lee, the sole witness who could implicate him in the shootings, was motivated by jealous rage over Sullivan’s involvement with other women, and that Lee had repeatedly threatened others with violence. Sullivan cited examples of postings that included a photograph of Lee holding a gun and making threats. In his offer of proof as to victim Rice’s social media records, Sullivan said review of the records was required to “locate exculpatory evidence” and to confront and cross-examine the prosecution gang expert from the San Francisco Police Department Gang Task Force, who testified that he “relied on social media records in forming an opinion whether a particular crime is gang related.”

Carefully reviewing, but ultimately rejecting these arguments, the Court of Appeal held the SCA provides no direct mechanism for access by a criminal defendant to private communication content, and “California’s discovery laws cannot be enforced in a way that compels . . . disclosures violating the Act.”

Although the court’s holding is limited; it left open the possibility that entities such as Facebook, Twitter or LinkedIn may be obligated to produce evidence of a person’s social media content in a criminal trial, instead of pretrial, as here. This is a curious procedural distinction, perhaps reflecting some discomfort with the holding.

The full opinion is available here.