COMMUNICATIONS CONFIGURED BY SOCIAL MEDIA USERS TO BE PUBLIC FALL WITHIN THE LAWFUL CONSENT EXCEPTION OF THE STORED COMMUNICATION ACT, PRESUMPTIVELY PERMITTING SOCIAL MEDIA PROVIDER DISCLOSURE

Courtesy of James R. Touchstone, Esq.

Communications configured by social media users to be “public” fall within the lawful consent exception of Stored Communication Act’s section 2702(b)(3), according to the California Supreme Court unanimous ruling in Facebook, Inc. v. Superior Court of San Francisco 2018 Cal. LEXIS 3635 (Cal. May 24, 2018).  The Court distinguished between a social media user’s public and private/restricted communications on Facebook, Twitter, and other social media platforms with respect to how social media providers must respond to a subpoena for such communications.

Background

In June 2013, surveillance videos showed two individuals who emerged from a car shoot at and kill Jaquan Rice, Jr.  Rice’s minor girlfriend was also seriously injured during this shooting, which occurred when Rice and his girlfriend were at a bus stop in San Francisco.  Witnesses identified Quincy Hunter, a fourteen-year-old, as one of the shooters. Questioned by homicide detectives, Quincy stated that he shot Rice six times in response to threats Rice made towards Quincy in a video featuring guns on Instagram, a social media network.  Quincy said that he, his brother, defendant Derrick Hunter, and another male drove a car to the shooting location that was provided by Renesha Lee (“Renesha”).[1]

Video surveillance footage demonstrated that Renesha was stopped while driving the car a few minutes after the shooting. Renesha concealed the involvement of her boyfriend, defendant Lee Sullivan, in the shooting over the course of multiple interviews. After she was threatened with prosecution, Renesha eventually disclosed that Sullivan drove away with the Hunter brothers in the backseat of the car that she loaned to them. Renesha became a prosecution witness and testified that she withheld information initially because she was afraid of Sullivan.

The prosecution presented the case to the grand jury.  Evidence presented by an inspector with the San Francisco Police Department to the grand jury demonstrated that the shooting occurred as the result of “cyber banging” – a new pattern of the expression of threats and disrespect between rival gangs on social media.  Police testified that Rice and the defendants belonged to rival gangs, and Rice had publicly threatened Quincy on Instagram prior to the shooting.

The inspector further testified that he relied heavily on “‘records from social media providers such as Facebook, Instagram, and Twitter to investigate and prosecute alleged gang members for gang crimes,’ and that in the present case, he ‘relied in part on’ such records to secure evidence that Rice, Sullivan, and the Hunter brothers ‘were members of rival gangs and that the shootings were gang related.’”  Real parties in interest Lee Sullivan and Derrick Hunter (“defendants”) were indicted by the grand jury.  At the time of this case’s decision, the defendants were awaiting trial on weapons, murder and gang-related charges.

Each defendant served a subpoena duces tecum on one or more social media service providers (“Providers”), including Facebook, Inc., Instagram, LLC, and Twitter, Inc.  The subpoenas broadly sought public and private communications, including any deleted posts or messages, from the social media accounts of Renesha and Rice.

In response, the Providers moved to quash the subpoenas, stating that as providers they were prohibited from disclosing such communications to defendants by the Stored Communications Act[2] (“SCA”).  The SCA regulates the conduct of covered service providers, declaring that they may not generally disclose stored electronic communications except as compelled by law enforcement entities using procedures such as search warrants or prosecutorial subpoenas or under specified circumstances (including with the consent of the social media user who posted the communication).

Providers based their motions to quash upon the SCA’s section 2702(a), which declares that a covered “person or entity” (encompassing providers here) “shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.”  Providers contended that this language barred a provider from revealing any communication, whether the social media user had configured the communication to be restricted to only authorized recipients (“private”) or placed no such restriction upon the communication (“public”).  Providers further claimed that none of Section 2702(b)’s exceptions to the prohibition on provider disclosure applied to the sought after communications here.

Defendants apparently accepted Providers’ interpretation of the SCA and their assertion that it precluded Providers from complying with the subpoenas.  However, defendants reasserted in their oppositions to the Providers’ motions to quash that they needed all of the requested communications to properly prepare for trial and defend against the pending murder charges.  They presented user screenshots in support of such defense needs, including those allegedly showing Renesha’s jealous anger towards defendant Sullivan.  Defendants contended that if the SCA precluded Provider compliance with the pretrial subpoenas, then the SCA violated their constitutional rights under the Fifth and Sixth Amendments to the United States Constitution.

The trial court agreed with defendants’ constitutional contentions, effectively accepting the Providers’ SCA interpretation. The court denied Providers’ motions to quash, and ordered them to produce the requested communications for the court’s in camera review.  Providers sought, and the Court of Appeal issued, a stay of the production order. After briefing and argument, the appellate court disagreed with the trial court’s constitutional conclusion and issued a writ of mandate, directing the trial court to quash the subpoenas.  The Supreme Court of California granted review.

Discussion

The California Supreme Court reviewed the SCA’s language, its legislative history, and prior relevant case law.  The Court observed that Viacom Int’l Inc. v. YouTube Inc., (S.D.N.Y. 2008) 253 F.R.D. 256 held that, although one who posts a communication (in that case, a YouTube video) with a “reasonable basis for knowing that it will be available to the public” should be considered to have implicitly consented to Section 2702(b)(3) disclosure.  The opinion further stated that provider YouTube was barred under Section 2702(a) from disclosing videos that users had designated as private. The Court also discussed Crispin v. Christian Audigier, Inc.,[3] which held that communications configured by the user to be restricted in some manner fell within Section 2702’s prohibition on disclosure by providers and were not subject to a civil subpoena directed to those providers.  However, the Court noted that the opinion provided that subpoenas would be enforceable if they sought public social media communications from providers. After its thorough discussion of the SCA, the Court concluded that communications configured by a social media user to be “public” fell within Section 2702(b)(3)’s lawful consent exception[4] to Section 2702’s prohibition on disclosure, presumptively allowing disclosure by a provider.

Defendants contended that even restricted communications could be considered the same as public communications for subpoena disclosure purposes under the lawful consent exception if directed to a “large group” of people.  However, the Court rejected defendants’ expansive view and found that implied consent to disclosure by a provider was not established just because a private communication was made accessible to a large group of friends or followers.  After an extensive discussion of related issues set forth in Negro v. Superior Court,[5] the Court also rejected Providers’ assertion that the SCA allowed them “discretion” to defy an otherwise proper criminal subpoena seeking public communications.

The California Supreme Court concluded that the Court of Appeal was correct to the extent that it found the subpoenas unenforceable under the SCA with respect to a user’s private communications.  However, the Court also held that the appellate court incorrectly determined that Section 2702 barred a user’s public communications from disclosure.  Pursuant to Section 2702(b)(3)’s lawful consent exception, providers must disclose any such public communication ordered by a properly authorized subpoena.

The Supreme Court explained that whether any given communication sought by the subpoenas in the present case fell within the lawful consent exception of Section 2702(b)(3), and must be disclosed by a provider pursuant to a subpoena, could not be resolved based on the current undeveloped factual record. The Court found that “the record before us is incomplete in these respects,” and that these concerns must be explored on remand. Accordingly, the Supreme Court vacated the Court of Appeal’s decision and directed it to remand the matter to the trial court to permit the parties to further develop the record so that the trial court could reassess the propriety of the subpoenas under the SCA in light of the Court’s decision.

HOW THIS AFFECTS YOUR AGENCY

This decision clarifies somewhat the ever evolving issues concerning electronic media and their intersection with law enforcement matters.  While law enforcement can access social media communications under certain conditions using warrants and subpoenas, agencies should take note that some defense attorneys have lauded this decision for presenting a new avenue to access social media communications authenticated by the provider pertaining to the defense of their clients.

Social media providers must now produce a user’s public communications in response to a proper criminal subpoena under the lawful consent exception of the Stored Communications Act’s section 2702(b)(3). Private or restricted communications still may not be disclosed by a provider responding to a subpoena request.  Other issues remain unresolved, such as the provider disclosure rules when a user changes a once public communication to private, or deletes a public communication, or closes their account.  It is also worth noting that this case’s parameters are distinct from the exception for provider disclosure to law enforcement set forth in Section 2702(b)(7)(A)(ii), which applies if communications “appear to pertain to the commission of a crime.”

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] Quincy Hunter was later tried in a juvenile court, held responsible for Rice’s murder and the attempted murder of Rice’s girlfriend, declared a ward of the court, and committed to the Department of Juvenile Justice for over 83 years.

[2] 18 U.S.C. section 2701 et seq.

[3] 717 F. Supp. 2d 965 (C.D. Cal. 2010).

[4] Section 2702(b)(3): “Exceptions for disclosure of communications.  A provider … may divulge the contents of a communication– with the lawful consent of the originator or an addressee or intended recipient of such communication…”

[5] 230 Cal.App.4th 879 (6th Dist. 2014).





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