Social Media Disclosure Order Causes a FIT

The LA Times calls it “unprecedented,” which may be true in the sense that it’s never happened before. But the notion that corporations aren’t above the law isn’t entirely novel, and even the behemoths, Facebook, Instagram and Twitter (“FIT”), must comply with a California state court order in a criminal proceeding. Imagine that.

In an unprecedented move, the California Supreme Court has allowed the defense in a gang-related murder trial in San Francisco to obtain private postings from Facebook, Instagram and Twitter.

In a brief order Wednesday, the court let stand a San Francisco judge’s ruling that the social media companies must turn over the private postings being sought by defendants in a murder trial.

According to Jim Tyre, this “brief order” was the California equivalent of a cert denial, referred to as “postcard denials” because they were sent out on a post card in the olden days that said something on the order of, “nah.” But in this instance, the refusal to bend to the will of the FIT was apparently shocking. Don’t they own California?

The case marks the first time such an order has been enforced in a California court and possibly in any state court in the country. In the past, only law enforcement could force social media to turn over private postings.

Criminal defense lawyers are expected to cite the order in other cases where they are seeking access to private postings, though the decision will not be binding on other courts.

The issue wasn’t about public postings, which are, by definition, public, but about the private stuff, the good stuff, that prying eyes can’t see, but the defense in a gang murder case might need desperately to mount a viable defense. FIT wasn’t having any of it.

The federal law invoked by the media companies is the Stored Communications Act, which regulates the conduct of covered service providers and says they may not disclose stored electronic communications except under specified circumstances.

From the perspective of FIT, this was a test of fortitude, one that reflected their dedication to preserving the sanctity of users’ secrecy from the prying eyes of the defense. Mind you, the government already had access to it, which may not have thrilled FIT but didn’t present enough of a problem that it was willing to go to the mattresses. But the defense?

Section 2703 regulates government access to stored communications or transaction records in the hands of third party service providers. There are four categories of information, each with differing access requirements:

These categories require a search warrant. 18 U.S.C. § 2703(a)-(c) Records pertaining a may be obtained by a court order upon proof of “specific and articulable facts showing … reasonable grounds to believe that … the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d); see also In re United States for an Order Pursuant to 18 U.S.C. 2703(d), 36 F. Supp. 2d 430 (D. Mass. 1999).

The SCA makes no provision for disclosure in response to civil subpoenas, but then this wasn’t a civil case. Nor was this the government. It was the defense, and they sought enforcement of their subpoena and received a court order directing FIT to comply. Guess what FIT threw?

There is a basic tenet of law that “the public has a right to every man’s evidence,” and while FIT isn’t exactly a man, that’s not really the issue. The defendant has a right pursuant to the Sixth Amendment to defend against the government’s accusations. If there is material and relevant evidence hidden behind FIT’s privacy wall, the desire of private entities to refuse to disclose doesn’t deprive the defense from seeking the evidence or a court from ordering it. Yes, even FIT has to comply with it.

In the underlying gang murder case, social media threats played a critical role.

The prosecution contended that Hunter, Sullivan and the minor belonged to Big Block, a criminal street gang, and that Rice was killed because he was a member of a rival gang and had threatened the minor on social media.

Lawyers for Hunter and Sullivan served subpoenas on Facebook Inc., Instagram LLC and Twitter Inc. The subpoenas sought both private and public communications, including any deleted posts or messages, from the accounts of the homicide victim and a prosecution witness.

Whether the murder victim’s threats provide a defense to murder, or whether the use of the victim’s and the prosecution witness’ private communications serve some other tactical purpose, is unclear. Then again, it’s not the defense’s job to explain its strategy in advance of trial. Clearly, the communications are material and relevant, and that’s reason enough for the defense to seek them and the court to grant them. FIT doesn’t want to? Who cares?

By denying review, the California Supreme Court dodged the precedent bullet by not providing a decision that would be binding on all courts of the state. Maybe this was a gift to FIT, as the argument that the order below, and subsequent denial, should control future orders is persuasive, but not precedential.

What remains somewhat astounding is that this was an issue at all. Much as it’s understandable that FIT wants to tell its users that their private communications will remain that way, government eyes excepted of course, neither their marketing interests, privacy concerns nor the comfort of the Stored Communications Act overcome the defendant’s constitutional rights.

And in the scheme of relative importance, isn’t the right of a defendant to gain access to the evidence necessary to defend against a charge of murder, with the requisite court order, good enough reason for FIT to comply? If it’s happy enough to disclose private communications to the government with a smile, then give them to the defense as well.

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