Facebook, Inc. v. Superior Court of City & Cnty. of S.F.

• Decision Date: 13 February 2020
• Docket Number: A157143
• Citation: 259 Cal.Rptr.3d 331,46 Cal.App.5th 109
• Court: California Court of Appeals Court of Appeals
• Parties: FACEBOOK, INC., et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Derrick D. Hunter et al., Real Parties in Interest.

46 Cal.App.5th 109

259 Cal.Rptr.3d 331

FACEBOOK, INC., et al., Petitioners,

v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent;Derrick D. Hunter et al., Real Parties in Interest.

A157143

Court of Appeal, First District, Division 5, California.

Filed February 13, 2020

Attorney for Petitioners: Joshua S. Lipshutz and Michael J. Holecek, Gibson, Dunn & Crutcher LLP James G. Snell, John R. Tyler, and Anna M. Thompson, Perkins Coie LLP

Attorneys for Real Parties in Interest: Jose Umali for Derrick D. Hunter

Bicka Barlow and Susan Kaplan for Lee Sullivan

BURNS, J.

Real parties in interest Derrick D. Hunter and Lee Sullivan (defendants) were indicted on murder, weapons, and gang-related charges stemming from a drive-by shooting. Each defendant served a subpoena duces tecum on one or more of the petitioners, social media providers Facebook, Inc., Instagram, LLC, and Twitter, Inc. (collectively, providers), seeking both public and private communications from the murder victim’s and a prosecution witness’s accounts. Providers, none of whom are parties to the underlying criminal case, repeatedly moved to quash the subpoenas on the ground that the federal Stored Communications Act (Act; 18 U.S.C. § 2701 et seq. ) barred them from disclosing the communications without user consent. In the challenged order, the trial court concluded that the Act must yield to an accused’s due process and confrontation rights, denied the motions to quash, and ordered providers to produce the victim’s and witness’s private communications for in camera review. Providers seek a writ of mandate directing respondent court to quash the subpoenas.

We conclude the trial court abused its discretion. The record does not support the requisite finding of good cause for production of the private communications for in camera review. Accordingly, we grant the petition and direct the trial court to quash the subpoenas.

BACKGROUND

A.

Subject to limited exceptions, the Act prohibits electronic communication service providers from "knowingly divulg[ing]" the contents of a user communication. ( 18 U.S.C. § 2702(a)(1)-(2), (b) - (c) ; accord, Facebook, Inc. v. Superior Court (Hunter ) (2018) 4 Cal.5th 1245, 1262, 1264-1265, 233 Cal.Rptr.3d 77, 417 P.3d 725 ( Hunter II ).) Disclosure is authorized if it is made "with the lawful consent of the originator or an addressee or intended recipient of such communication." ( 18 U.S.C. § 2702(b)(3) ; Hunter II, supra , at p. 1265, 233 Cal.Rptr.3d 77, 417 P.3d 725.) Other exceptions are provided for disclosures made to government entities pursuant to a warrant, court order, or a subpoena. ( 18 U.S.C. § 2703(a) - (c).) It is undisputed that the Act prohibits the providers from producing private communications to a non-governmental entity without the user’s consent. ( Hunter II, supra , at pp. 1250, 1290, 233 Cal.Rptr.3d 77, 417 P.3d 725 ; 18 U.S.C. § 2702(a)(1)-(2), (b)(3).) However, the Act allows a provider to divulge information about a subscriber, other than the contents of the communications, "to any person other than a governmental entity." ( 18 U.S.C. § 2702(c)(6).)

The Act "protects individuals’ privacy and proprietary interests [and] reflects Congress’s judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility." ( Theofel v. Farey-Jones (9th Cir. 2004) 359 F.3d 1066, 1072–1073.) Congress also sought to encourage the use and development of new technologies by "significantly limit[ing] the potential onus on providers by establishing a scheme under which a provider is effectively prohibited from complying with a subpoena issued by a nongovernmental entity—except in specified circumstances." ( Hunter II, supra, 4 Cal.5th at p. 1290, 233 Cal.Rptr.3d 77, 417 P.3d 725, italics omitted.)

B.

In June 2013, Jaquan Rice, Jr., was killed and B.K., a minor, was seriously injured in a drive-by shooting. The car used in the shooting was identified by surveillance video. The video shows the two shooters in the rear passenger seats. The driver of the vehicle was not visible on the video. Witnesses provided inconsistent descriptions of the driver’s gender.

Within minutes, police stopped prosecution witness Renesha Lee driving the car used during the shooting. She was its sole occupant. Lee and Sullivan had been dating at that time. When interviewed by police that day, Lee initially "just made up names and stuff." Eventually she told the police that Hunter and his younger brother were among those who had borrowed her car. Lee did not mention Sullivan’s name until sometime later when she " ‘told them the truth’ "—that Sullivan had been involved along with Hunter and his brother. Although Lee told police she had not been in the car at the time of the shooting, one witness identified her as the driver.

The police obtained search warrants directed at Rice’s Facebook and Instagram accounts.¹ The prosecution later shared with the defense information obtained from some (but possibly not all) of Rice’s social media accounts. The police did not seek search warrants as to Lee.

When questioned by police, Hunter’s 14-year-old brother confessed to the shooting. He told police he shot Rice because Rice had repeatedly threatened him, both in person and in social media postings on Facebook and Instagram. Rice also had "tagged" the boy in a video on Instagram that depicted guns. Hunter’s brother was ultimately tried in juvenile court.

In presenting the case against defendants to the grand jury, the prosecution contended defendants and Hunter’s brother were members of Big Block, a criminal street gang, and that Rice was killed because he was a member of a rival gang, West Mob, and because Rice had publicly threatened Hunter’s brother on social media. Defendants were charged with the murder of Rice and the attempted murder of B.K. ( Pen. Code, §§ 187, 664.)²

C.

Before trial, in 2014, Sullivan’s counsel served subpoenas duces tecum (§ 1326, subd. (b)) on Facebook, Instagram, and Twitter, seeking records from their social media accounts. As to Facebook and Instagram, the subpoenas sought "[a]ny and all public and private content," including user information, associated email addresses, photographs, videos, private messages, activity logs, posts, location data, comments, and deleted information for accounts belonging to Rice and to Lee. Defendants’ subpoenas to Twitter sought similar information as to Lee only. To authenticate the requested records, Sullivan’s subpoenas also sought the identity of each providers’ custodian of records.

D.

Providers moved to quash defendants’ subpoenas, asserting the Act ( 18 U.S.C. § 2702(a)(1)-(2) ) bars them from disclosing any communication (whether configured as public or private) and that no exceptions applied. Defendants implicitly accepted providers’ conclusion that the Act barred providers from complying with the subpoenas but nonetheless argued compliance was required because the Act violated their rights under the Fifth and Sixth Amendments to the United States Constitution. Sullivan pointed out Lee was the only witness who implicated him in the shootings. The trial court (Honorable Bruce E. Chan) accepted the defendants’ constitutional argument, denied providers’ motions to quash, and ordered providers to produce the requested communications for in camera review.

Providers sought, and this Division issued, a stay of that order. A different panel of this court concluded the Act barred enforcement of defendants’ subpoenas and rejected defendants’ arguments that the Act, as applied pretrial , violated their rights under the Fifth and Sixth Amendments to the federal Constitution. ( Facebook, Inc. v. Superior Court (Hunter ) (2015) 240 Cal.App.4th 203, 215-221, 192 Cal.Rptr.3d 443, judg. vacated and cause remanded by Hunter II, supra, 4 Cal.5th at p. 1291, 233 Cal.Rptr.3d 77, 417 P.3d 725.)

Our Supreme Court granted defendants’ petition for review. In Hunter II, supra, 4 Cal.5th 1245, 233 Cal.Rptr.3d 77, 417 P.3d 725, the court concluded the Act’s lawful consent exception ( 18 U.S.C. § 2702(b)(3) ) allowed providers to disclose communications configured by a user to be public. ( Id. at p. 1274, 233 Cal.Rptr.3d 77, 417 P.3d 725.) Hunter II also concluded the pretrial subpoenas were unenforceable under the Act "with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted." ( Id . at p. 1250, 233 Cal.Rptr.3d 77, 417 P.3d 725.) Because production of public communications could obviate the need for additional communications, and because the trial court did not develop an adequate record on alternative ways to obtain communications, the Hunter II court declined to address the parties’ constitutional arguments and remanded the matter to the trial court. ( Id . at pp. 1250-1251, 1275-1276, 233 Cal.Rptr.3d 77, 417 P.3d 725.)

In particular, the Hunter II court observed: "[I]n the lower court proceedings the parties did not focus on the public/private configuration distinction. The trial court made no determination whether any communication sought by defendants was configured to be public (that is, with regard to the communications before us, one as to which the social media user placed no restriction on who might access it) or, if initially configured as public, was subsequently reconfigured as restricted or deleted. Nor is it clear that the trial court made a sufficient effort to require the parties to explore and create a full record concerning defendants’ need for disclosure from providers—rather than from others who may have access to the communications . Consequently, at this point it is not apparent that the court had sufficient information by which to assess defendants’ need for disclosure from providers when it denied the motions to quash and allowed discovery on a novel constitutional theory . In any event, because the record...