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California Supreme Court to Review Whether Criminal Defendant Has a Constitutional Right to Obtain Social Media Records

Posted on January 29th, 2018

Our blog explains discovery

Our blog explains discoveryFacebook, Inc. v. Superior Court, No. D072171, 15 Cal. App. 5th 729 (2017) relates to a criminal case where the defendants in a gang-related drive-by shooting case subpoenaed the Facebook, Twitter, and Instagram posts of a murder victim and a witness.

The social media companies moved to quash the subpoenas, objecting under the federal Stored Communications Act (“SCA”) to the compelled disclosure of the content of their users’ electronic communications. Defendants responded that the requested information is necessary to properly defend against the pending charges, and that any statutory privacy protections afforded a social media user must yield to a criminal defendant’s constitutional rights to due process, presentation of a complete defense, and effective assistance of counsel.

The trial court denied petitioners’ motions to quash and ordered petitioners to produce responsive material for in camera review. Petitioners filed a petition for writ of mandate and/or prohibition in this court. The court issued an order staying the production order and requested opposition. After consideration of Defendants’ answer, and petitioners’ reply thereto, the court denied Defendants’ request to dissolve the temporary stay and issued an order requiring the respondent superior court to show cause why the relief requested by petitioners should not be granted. The court granted the petition and directed the trial court to issue an order quashing the subpoenas.

The California Supreme Court has now granted review.  In addition to the issues raised in the petition for review, the court directed the parties to address the following issues: (1) If, on remand, the prosecution lists the victim as a witness who will testify at trial and if the materiality of the sought communications is shown, does the trial court have authority, pursuant to statutory and/or inherent power to control litigation before it and to insure fair proceedings, to order the victim witness, on pain of sanctions, to either (a) comply with a subpoena served on him or her, seeking disclosure of the sought communications subject to in camera review and any appropriate protective or limiting conditions, or (b) consent to disclosure by provider Facebook subject to in camera review and any appropriate protective or limiting conditions? (2) Would a court order under either (1)(a) or (1)(b) be valid under the Stored Communications Act? (3) Assuming the orders described in (1) cannot properly be issued and enforced in conjunction with continuing pretrial proceedings, does the trial court have authority, on an appropriate showing during trial, to issue and enforce such orders? (4) Would a court order contemplated under (3) be proper under the Stored Communications Act? (5) As an alternative to options (1) or (3) set forth above, may the trial court, acting pursuant to statutory and/or inherent authority to control the litigation before it and to insure fair proceedings, and consistently with the SCA, order the prosecution to issue a search warrant under the SCA regarding the sought communications?  The court’s decision will be closely watched as social media becomes omnipresent in criminal trials.

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