Facebook, Inc. v. Superior Court of San Diego Cnty.

• Decision Date: 26 September 2017
• Docket Number: D072171
• Court: California Court of Appeals Court of Appeals
• Parties: FACEBOOK, INC., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Lance Touchstone, Real Party in Interest.

15 Cal.App.5th 729

223 Cal.Rptr.3d 660

FACEBOOK, INC., Petitioner,

v. The SUPERIOR COURT of San Diego County, Respondent;Lance Touchstone, Real Party in Interest.

D072171

Court of Appeal, Fourth District, Division 1, California.

Filed September 26, 2017

Perkins Coie LLP, James G. Snell and Christian Lee, Palo Alto, for Petitioner.

No appearance for Respondent.

Office of the Alternate Public Defender, Megan Marcotte, Chief Deputy Alternate Public Defender, and Katherine I. Tesch, Deputy Alternate Public Defender, for Real Party in Interest.

NARES, Acting P. J.

The issue whether a criminal defendant has a constitutional right to obtain social media records from an electronic communication or remote computing service is currently under review by the California Supreme Court in Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, review granted December 16, 2015, S230051 ( Facebook I ). In this case, we address the same issue knowing that our high court will likely grant review and hold this matter pending a decision in Facebook I . Nonetheless, we publish our thoughts agreeing with the conclusion in Facebook I for their potential persuasive value. ( Cal. Rules of Court, rules 8.1105(e), 8.1115(e)(1) [published opinions for which the Supreme Court has granted review have no binding or precedential value but may be cited for potential persuasive value only].) Accordingly, the petition for writ of mandate is granted.

FACTUAL AND PROCEDURAL BACKGROUND

Real party in interest Lance Touchstone is awaiting trial in respondent San Diego County Superior Court (the trial court) on a charge of attempting to murder Jeffrey R. (the victim). (Pen. Code, §§ 664/187, subd. (a).) After the shooting incident, the victim has been active on his personal Facebook, Inc., (Facebook) account. He posted updates of his physical recovery from the hospital, requesting private messages over the Facebook messaging system. On the public portion of his Facebook page that is visible to all Facebook users, the victim posted updates of court hearings in this case, asking his friends to attend the preliminary hearing. In public posts the victim also discussed his personal use of guns and drugs, and described his desire to rob and kill people.

Believing nonpublic content of the victim's Facebook account might provide exculpatory evidence helpful in preparing for trial, Touchstone served petitioner Facebook¹ with a subpoena for the subscriber records and contents of the victim's Facebook account, including timeline posts, messages, phone calls, photos, videos, location information and user-input information from account inception to the present date. Facebook filed a motion to quash the subpoena on the ground the Stored Communications Act (SCA) ( 18 U.S.C.² § 2701 et seq. ) prohibited disclosure of the victim's account contents. In an accompanying declaration, counsel for Facebook stated that Touchstone could obtain the requested contents directly from the victim or by working with the prosecutor to obtain a search warrant based on probable cause.

Touchstone opposed the motion on the grounds he had a plausible justification for requesting the contents of the victim's account, he should be allowed to obtain the contents because law enforcement could do so by a search warrant, his constitutional right to a fair trial trumped the SCA, and he could not obtain the contents from other sources because the victim was uncooperative and the prosecutor had not obtained a search warrant. At oral argument, defense counsel represented that the prosecution refused to issue a search warrant for the material and that she has been unable to locate the victim to serve him with a subpoena. The trial court denied the motion to quash and ordered Facebook to produce the contents of the victim's account for in camera inspection by a certain date.

Facebook seeks a writ directing the trial court to vacate its order denying the motion to quash the subpoena and to enter a new order granting the motion to quash. Facebook contends the trial court abused its discretion by denying the motion to quash and ordering production of documents for in camera inspection because the SCA prohibits Facebook from disclosing the content of its users' accounts in response to a subpoena. Facebook further contends that compelling it to disclose the contents of the victim's account is not necessary to preserve Touchstone's constitutional right to a fair trial because Touchstone can obtain the contents directly from the victim or through the prosecutor via a search warrant.

Facebook contends this court should adhere to the decision in Facebook I that a criminal defendant has no constitutional right to pretrial discovery of information protected from disclosure by the SCA. Facebook contends writ review is needed because it cannot appeal the order denying the motion to quash; the trial court abused its discretion by ordering production of contents protected from disclosure by the SCA; Facebook risks civil liability if it complies with the order or contempt if it does not; and the statutory and constitutional issues involved are novel, of widespread interest, and the subject of conflicting trial court rulings. Facebook also seeks an immediate stay of the challenged order to remain in effect until this court rules on the writ petition.

We stayed the production order pending consideration of the petition and requested an answer. Touchstone filed an answer. We issued an order to show cause to the respondent trial court why the relief requested in the petition should not be granted and stayed all further proceedings in the trial court. We requested and obtained supplemental briefing on the following three questions: (1) Does the supremacy clause prohibit enforcement of the subpoenas? (See U.S. Const., art. VI; Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815, 135 Cal.Rptr.2d 1, 69 P.3d 927 ["A state law actually conflicts with federal law ‘where it is impossible for a private party to comply with both state and federal requirements ....’ "] ); (2) If the materiality of private electronic communications is shown during trial, can the trial court compel a subscriber (such as the victim) or a witness who is also a recipient of a private electronic communication from the victim to consent to disclosure by Facebook of electronic communications for an in camera review? (See § 2702(b)(3); Juror Number One v. Superior Court (2012) 206 Cal.App.4th 854, 142 Cal.Rptr.3d 151 ); and (3) If the trial court may compel a witness to produce private electronic communications, what procedures or protections exist, or may be implemented to prevent a witness from deleting the communications?"

DISCUSSION

I. THE SCA

Congress passed the Electronic Communications Privacy Act of 1986 (ECPA) ( Pub.L. No. 99–508 (Oct. 21, 1986) 100 Stat. 1848) to amend the federal wiretap law and protect against the unauthorized interception of electronic communications and afford privacy protection to electronic communications based on technological advances that make it "possible for overzealous law enforcement agencies, industrial spies and private parties to intercept the personal or proprietary communications of others." (ECPA (Sen.Rep. No. 99–541, 2d Sess. pp. *1, 3 (1986) (Sen.Rep. No. 99–541), reprinted in 1986 U.S. Code Cong. & Admin. News at pp. 3555, 3557.) Chapter 119 of the ECPA (§§ 2510-2522) protects wire, oral, and electronic communications while in transit (Wiretap Act). (Scolnik, Protections for Electronic Communications: The Stored Communications Act and the Fourth Amendment (Oct. 2009) 78 Fordham L.Rev. 349, 375 & fn. 228 (Scolnik, Protections).) Chapter 121 of the ECPA created the SCA ( §§ 2701 - 2712 ) to protect communications held in electronic storage. (Scolnik, Protections, at p. 375 & fn. 229.) Chapter 206 (§§ 3121-3127) restricts the use of pen registers (Pen Register Act). (Scolnik, Protections, at p. 375 & fn. 230.)

"The Fourth Amendment provides no protection for information voluntarily disclosed to a third party, such as an Internet Service Provider (ISP). [Citations.] [¶] To remedy this situation, the SCA creates a set of Fourth Amendment-like protections that limit both the government's ability to compel ISP's to disclose customer information and the ISP's ability to voluntarily disclose it. [Citation.] ‘The [SCA] reflects Congress's judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility. Just as trespass [law] protects those who rent space from a commercial storage facility to hold sensitive documents, [citation], the [SCA] protects users whose electronic communications are in electronic storage with an ISP or other electronic communications facility.’ "( Juror Number One v. Superior Court , supra , 206 Cal.App.4th at p. 860, 142 Cal.Rptr.3d 151.)

Except as provided in section 2702(b) and (c), the SCA prohibits a person or entity providing electronic communication services or remote computing services to the public from "knowingly divulg[ing]" the contents of a communication while in electronic storage by that service, or which is carried or maintained on that service.³ (§ 2702(a)(1) & (2).) Section 2702(b) and (c) contain exceptions that allow a provider to disclose a communication under certain circumstances. Section 2702(c) allows a provider to divulge information about a subscriber, but not the content of communications. Section 2702(b) sets forth eight exceptions to the section 2702(a) prohibition on disclosing contents of communications. Touchstone does not argue that any of these exceptions apply. Our independent review of these exceptions convinces us that none apply to the instant situation where a criminal defendant is asking a provider to divulge the contents of a subscriber's private communication. (See also Zwillinger & Genetski, Criminal Discovery of Internet Communications Under the Stored Communications Act: It's Not a...