Facebook, Inc. v. Pepe, No. 19-SS-1024

• Decision Date: 14 January 2020
• Docket Number: No. 19-SS-1024
• Citation: 241 A.3d 248
• Parties: FACEBOOK, INC., Appellant, v. James PEPE, Appellee, and United States, Intervenor.
• Court: D.C. Court of Appeals

241 A.3d 248

FACEBOOK, INC., Appellant,

v. James PEPE, Appellee,andUnited States, Intervenor.

No. 19-SS-1024

District of Columbia Court of Appeals.

Argued January 14, 2020

Joshua S. Lipshutz, with whom Naima L. Farrell, Aaron Smith, John K. Roche, Ariel Glickman, Washington, DC, Michael J. Holecek, of the bar of the State of California, pro hac vice, by special leave of the court, and Thomas F. Cochrane, Los Angeles, of the bar of the State of California, pro hac vice, by special leave of the court, were on the brief, for appellant.

William Collins, Public Defender Service, Atlanta, with whom Samia Fam, Mikel-Meredith Weidman, and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellee.

Andrew W. Laing, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Brian A. Benczkowski, Assistant Attorney General, John P. Cronan, Principal Deputy Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, and Nathan P. Judish, Attorney, Computer Crime and Intellectual Property Section, Criminal Division, United States Department of Justice, were on the brief, for intervenor.

Before GLICKMAN and FISHER, Associate Judges, and NEBEKER, Senior Judge.

GLICKMAN, Associate Judge:

Appellant Facebook, Inc. (Facebook) filed an expedited appeal from an order holding it in civil contempt for refusing to comply with an ex parte subpoena served by appellee James Pepe, and from a related order directing Facebook not to disclose the existence of the subpoena to any person or entity other than its counsel until it complied with the subpoena. We issued a Judgment on January 16, 2020, that affirmed the order holding Facebook in contempt, but vacated the nondisclosure order. This opinion explains those rulings.

I.

Mr. Pepe's subpoena sought evidence from Facebook supporting his defense to then-pending criminal charges arising out of the shooting of Marquette Brown on December 6, 2018. Mr. Pepe claimed he shot in self-defense after Mr. Brown and his associates, who had been threatening him, surrounded him on an A6 bus and pursued him when he got off and tried to walk away from them. Shortly before this encounter, Brown allegedly sent Pepe a disappearing Instagram "Story"¹ in which Brown menacingly bragged that he had been carrying a weapon during one of their previous confrontations and warned Pepe not to ride the A6 bus. Mr. Pepe had not preserved and no longer possessed this Story. It was not included in the voluminous records that Facebook had produced to the government from Mr. Pepe's Instagram account in response to a search warrant (which records the government turned over to Mr. Pepe in pretrial discovery).

In an effort to obtain the evanescent Instagram Story and other potentially helpful evidence of Brown's threats, Mr. Pepe asked the Superior Court to authorize an ex parte subpoena to Facebook under Superior Court Criminal Rule 17(c).² The subpoena sought (1) communications from Brown's Instagram account to Pepe's account,³ and (2) non-content information pertaining to Brown's account, such as message headers identifying other Instagram accounts with which Brown had communicated around the time of the shooting. The trial court approved the ex parte subpoena and found that "exceptional circumstances" existed to dispense with requiring notice of the subpoena to Brown.⁴

Facebook moved to quash the subpoena. It principally contended that the subpoena was unenforceable because the requested records were subject to the privacy protections of the Stored Communications Act (SCA).⁵ After a hearing, the trial court denied the motion. The court ruled that the requested records fell within statutory exceptions to the SCA's prohibitions on disclosure of electronic records and the contents of electronic communications, and that the SCA did not empower Facebook to defy an otherwise lawful subpoena for such excepted information.

Facebook also requested the court's permission to disclose the existence of the ex parte subpoena to the government or Mr. Brown so it could explore whether the requested information could be procured without the subpoena – for example, if the government were to obtain a warrant for the information and thereafter produce it to Mr. Pepe. Mr. Pepe opposed this request, and the trial court ultimately rejected it and ordered Facebook not to disclose the subpoena to any person or entity (other than its counsel) until it had complied with the subpoena. The court concluded that this restraint on disclosure was justified under Criminal Rule 17(c)(3) to prevent loss or destruction of the requested evidence and to protect Mr. Pepe from the premature disclosure of his defense investigation and strategy, and that it did not violate the First Amendment.⁶

Facebook did not comply with the subpoena by the deadline imposed by the court. The court accordingly held it in civil contempt and stayed the monetary sanctions it imposed pending Facebook's expedited appeal.⁷

Our January 16, 2020 Judgment in this appeal upheld the subpoena and affirmed the adjudication of civil contempt. We agreed with the trial court, Mr. Pepe, and the United States that the SCA neither required nor authorized Facebook's refusal to comply with the subpoena. However, we vacated the nondisclosure order.⁸ Given Facebook's unrebutted representation that it had secured any requested communications and records in its possession, we were not persuaded the nondisclosure order was justified by a need to preserve the records or by Mr. Pepe's confidentiality concerns.

II. Enforceability of the Subpoena

As a provider of electronic communication services, Facebook must comply with the provisions of the SCA governing its disclosure of customer communications and records. The provision of the SCA applicable to this case, 18 U.S.C. § 2702, contains a prohibition on disclosure and exceptions to that prohibition. Subsection (a) states that "[e]xcept as provided in subsection (b) or (c)," service providers "shall not knowingly divulge to any person or entity the contents" of electronically stored communications or "to any governmental entity" "record[s] or other information pertaining to a subscriber [ ] or customer" (i.e., records that are not communications). If one of the exceptions listed in subsections (b) and (c) applies, the provider "may divulge" the communication, record, or information at issue.⁹

In Facebook v. Wint¹⁰ we held that where no statutory exception applies, § 2702(a) prohibits a service provider from complying with a criminal defendant's subpoena for covered communications and records. In other words, the SCA renders that subpoena unenforceable against the provider. Our opinion left unanswered the question whether the SCA similarly precludes a criminal defendant from subpoenaing material that falls within one of § 2702's exceptions. That is the question posed in the present case. Mr. Pepe contends the SCA is no obstacle to the enforcement of his subpoena, because exceptions in subsections (b) and (c) of § 2702 specifically allow a provider like Facebook to divulge (1) the contents of a covered communication to, or with the consent of, "an addressee or intended recipient of such communication,"¹¹ and (2) customer records and information other than a covered communication "to any person other than a governmental entity."¹²

In opposing Mr. Pepe's invocation of these exceptions, Facebook makes two principal arguments. First, it argues that Mr. Pepe is not "an addressee or intended recipient" of an Instagram communication that has, by design, automatically expired and disappeared from his account. Second, Facebook argues that even if subsections (b)(1), (b)(3), and (c)(6) permit it to divulge the requested communications and records to Mr. Pepe, it cannot be compelled to do so by his subpoena because the SCA preempts such compulsory discovery and commits the disclosure decision in cases like this to the service provider's unfettered discretion. Each of these arguments presents a question of statutory interpretation as to which our review is de novo .¹³ As we stated in construing the SCA in Wint ,

We first look to see whether the statutory language at issue is "plain and admits of no more than one meaning." Peoples Drug Stores, Inc. v. District of Columbia , 470 A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation marks omitted). We will give effect to the plain meaning of a statute "when the language is unambiguous and does not produce an absurd result." McNeely v. United States , 874 A.2d 371, 387 (D.C. 2005) (internal quotation marks omitted). "[W]e may also look to the legislative history to ensure that our interpretation is consistent with legislative intent." Thomas v. Buckley , 176 A.3d 1277, 1281 (D.C. 2017) (internal quotation marks omitted).¹⁴

For the following reasons, we reject both arguments and conclude that the SCA does not render Mr. Pepe's subpoena unenforceable.¹⁵

A. Mr. Pepe's Status as an "Addressee or Intended Recipient"

Facebook argues that Mr. Pepe cannot be considered an "addressee or intended recipient" of Instagram messages that have expired and disappeared from view on his Instagram platform after twenty-four hours. According to Facebook, a sender's use of such an ephemeral format implies the sender meant to limit the receiver's continued access to the message and makes the receiver only a former addressee or intended recipient of the message once it has disappeared. Taken to its logical conclusion, Facebook's position is that a receiver must have current access to a communication when seeking its disclosure in order to be deemed an "addressee or intended recipient" of it within the meaning of §§ 2702(b)(1) and (b)(3). Mr. Pepe disagrees, arguing that the plain meaning of "addressee or intended recipient" does not turn on how long the sender wanted the communication to remain available for viewing or...