Must companies that provide electronic communication services, like Facebook, comply with a subpoena from a criminal defendant? In a decision underscoring the disparity in discovery resources between the government and criminal defendants, the D.C. Court of Appeals answered “no.”
In the fall of 2018, Defendant Daron Wint, who is charged with murder, asked the D.C. Superior Court to allow him to serve subpoenas on Facebook and a Facebook subsidiary to require them to produce records about Facebook account holders, including those holders’ communications. Facebook refused to comply with the subpoenas, arguing that Section 2702 of the Stored Communications Act (“SCA”) prohibited it from disclosing the requested information without the account holders’ consent or another statutory exception. The trial court nevertheless held Facebook in civil contempt for its failure, and Facebook filed an emergency appeal to the D.C. Court of Appeals.
Wint made numerous arguments that the SCA should be interpreted to require Facebook to comply with his subpoenas. The D.C. Court of Appeals, however, reasoned that based on the SCA’s plain language, structure, and legislative history, “the SCA prohibits providers from disclosing covered communications in response to criminal defendants’ subpoenas.” The court found that Sections 2702 and 2703 (which govern when the government can obtain communications) “appear to comprehensively address the circumstances in which providers may disclose covered communications,” and neither section explicitly includes complying with criminal defendants’ subpoenas. This decision, the court noted, is also consistent with how other courts have treated civil subpoenas by private litigants under the SCA.
The appellate court also rejected Wint’s argument that interpreting the SCA to bar Facebook from complying with his subpoenas infringes on his constitutional right to obtain evidence and present a complete defense. The court explained that defendants like Wint can subpoena the account holders directly for their Facebook communications. That process, the court reasoned, “increases the chances that affected individuals can assert claims of privilege or other rights of privacy” before their communications are produced, in part, because the affected individuals have a greater incentive than third parties to object to a subpoena.
In some ways, this decision is unsurprising given the language of the SCA. But Wint’s arguments that the SCA creates an unconstitutional obstacle to presenting a fulsome defense could result in additional challenges by criminal defendants in the future. Unlike criminal defendants, the government can compel disclosure of electronic communications under Section 2703 of the SCA if it complies with certain safeguards, such as obtaining a warrant or a subpoena. Although under Brady v. Maryland the government must share with the criminal defendant any potentially exculpatory evidence it has, such defendants are dependent on the government to request the information in the first place. Unless a future challenge changes this interpretation of the SCA, defendants seeking covered communications from electronic communication service providers such as Facebook will have to seek that discovery from other sources or argue that their request falls into one of several enumerated exceptions to the SCA.