Facebook, Inc. v. Wint

• Citation: 199 A.3d 625
• Decision Date: 03 January 2019
• Docket Number: No. 18-CO-958,18-CO-958
• Court: Court of Appeals of Columbia District
• Parties: FACEBOOK, INC., Appellant, v. Daron WINT, Appellee, and United States, Intervenor.

199 A.3d 625

FACEBOOK, INC., Appellant,
v.
Daron WINT, Appellee,
and
United States, Intervenor.

No. 18-CO-958

District of Columbia Court of Appeals.

Argued October 9, 2018
Decided January 3, 2019

Joshua S. Lipshutz, Washington, with whom Michael Holecek, Los Angeles, of the bar of the State of California, pro hac vice, by special leave of court, Thomas Cochrane, of the bar of the State of California, pro hac vice, by special leave of court, John K. Roche, and Hayley L. Berlin, Washington, were on the brief, for appellant.

Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam, Jaclyn Frankfurt, and Alice Wang, Public Defender Service, were on the brief, for appellee.

Lauren R. Bates, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Assistant United States Attorney, were on the brief, for intervenor.

Before Glickman and McLeese, Associate Judges, and Farrell, Senior Judge.

McLeese, Associate Judge:

Appellant Facebook, Inc. filed an emergency appeal from an order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint. We previously issued a brief order reversing the trial court's order, and

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we now publish this opinion to more fully explain our ruling.

I.

Mr. Wint was charged with murder in D.C. Superior Court. Before trial, he filed an ex parte motion asking the trial court to authorize defense counsel to serve subpoenas duces tecum on Facebook and a Facebook subsidiary for records, including the contents of communications, relating to certain accounts. Facebook objected, arguing that the Stored Communications Act (SCA), 18 U.S.C.A. §§ 2701 - 12 (West 2018), prohibits Facebook from disclosing such information in response to a criminal defendant's subpoena. The trial court approved the subpoena request and held Facebook in civil contempt for failing to comply.

II.

In the trial court, Mr. Wint argued that if the SCA were interpreted to preclude Facebook from complying with the subpoenas at issue, then the SCA would be unconstitutional. Mr. Wint has not renewed that argument in this court, however, and that argument therefore is not before us. Rather, Mr. Wint has argued in this court only that the SCA is properly interpreted to permit Facebook to comply. We decide that issue of statutory interpretation de novo. Richardson v. United States , 927 A.2d 1137, 1138 (D.C. 2007). 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).

A.

The SCA broadly prohibits providers from disclosing the contents of covered communications, stating that providers "shall not knowingly divulge to any person or entity the contents" of covered communications, except as provided. 18 U.S.C.A. § 2702(a)(1). The SCA contains nine enumerated exceptions to this prohibition. 18 U.S.C.A. § 2702(b)(1)-(9). Mr. Wint does not rely on any of those exceptions, and none of them applies in the present case. The plain text of the SCA thus appears to foreclose Facebook from complying with Mr. Wint's subpoenas.

The structure of the SCA points to the same conclusion. See generally, e.g. , Frey v. United States , 137 A.3d 1000, 1004 (D.C. 2016) ("The [Supreme] Court frequently takes Congress's structural choices into consideration when interpreting statutory provisions.") (brackets and internal quotation marks omitted). Section 2702, titled "Voluntary disclosure of customer communications or records," begins with a general prohibition against disclosure and provides a number of exceptions to the general prohibition. Section 2703, titled "Required disclosure of customer communications or records," sets out provisions pursuant to which governmental entities may compel disclosure from service providers. Read together, §§ 2702 and 2703 appear to comprehensively address the circumstances in which providers may disclose covered communications. Those circumstances do not include complying with criminal defendants' subpoenas.

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Authority from other jurisdictions also favors a plain-language reading of the SCA. As far as we have determined, every court to consider the issue has concluded that the SCA's general prohibition on disclosure of the contents of covered communications applies to criminal defendants' subpoenas. United States v. Pierce , 785 F.3d 832, 842 (2d Cir. 2015) ("[T]he SCA provides that a governmental entity may require electronic communication service and remote computing service providers to disclose the contents of wire and electronic communication .... The SCA does not, on its face, permit a [criminal] defendant to obtain such information.") (brackets and internal quotation marks omitted); State v. Bray , 363 Or. 226, 422 P.3d 250, 256 (2018) ("A person like defendant, who is a nongovernmental entity, cannot require a remote computing service ... to divulge the contents of communications."); Facebook, Inc. v. Superior Court , 233 Cal.Rptr.3d 77, 417 P.3d 725, 727 (Cal. 2018) (SCA declares "as a general matter [that service providers] may not disclose stored electronic communications except under specified circumstances ... or as compelled by law enforcement entities"); State v. Johnson , 538 S.W.3d 32, 70 (Tenn. Crim. App. 2017) (stating that "defendants cannot obtain ... witnesses' electronic communications directly from the social media providers" under the SCA); United States v. Nix , 251 F.Supp.3d 555, 559 (W.D.N.Y. 2017) (SCA "does not permit a defendant in a criminal case to subpoena the content of a Facebook or Instagram account"); United States v. Wenk , 319 F.Supp.3d 828, 829 (E.D. Va. 2017) ("[T]he [SCA] does not contain a provision detailing the methods with which criminal defendants can require disclosure ...."). Courts have uniformly reached the same conclusion in the context of civil subpoenas on behalf of private litigants. E.g. , Suzlon Energy Ltd. v. Microsoft Corp. , 671 F.3d 726, 728 (9th Cir. 2011) ; PPG Indus., Inc. v. Jiangsu Tie Mao Glass Co. , 273 F.Supp.3d 558, 560-61 (W.D. Penn. 2017) (collecting cases).

B.

The foregoing considerations provide strong support for the conclusion that, barring an applicable statutory exception, the SCA prohibits providers from disclosing covered communications in response to criminal defendants' subpoenas. Mr. Wint, however, presses an alternative interpretation of § 2702. According to that interpretation, § 2702 addresses only the circumstances in which providers may voluntarily disclose covered communications and does not address compliance with court-ordered disclosures, such as subpoenas. In support of this interpretation, Mr. Wint relies on six principal contentions. Although some of Mr. Wint's contentions have some force, on balance we are not persuaded by Mr. Wint's argument.

1.

Mr. Wint argues that § 2702's seemingly unqualified general prohibition of disclosure should be read as limited to the context of voluntary disclosure, as reflected in the section's current title: "Voluntary disclosure of customer communications or records." Mr. Wint's argument on this point has several important weaknesses.

First, titles are of limited utility when weighed against plain statutory language. Cherry v. District of Columbia , 164 A.3d 922, 928 (D.C. 2017) ("The significance of the title of [a] statute should not be exaggerated .... It cannot limit the plain meaning of the text.") (brackets and internal quotation marks omitted); see generally, e.g. , Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co. , 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947) ("[H]eadings and titles are not meant to take the

199 A.3d 630

place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide or a synopsis. Where the text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner; to attempt to refer to each specific provision would often be ungainly as well as useless. As a result, matters in the text which deviate from those falling within the general pattern are frequently unreflected in the headings and titles. Factors of this type have led to the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text.").

Second, § 2702's current title must be read in conjunction with § 2703's current title ("Required disclosure of customer communications or records"), as well as with...