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California High Court Sets Rules for Facebook Subpoena (3)

Aug. 13, 2020, 8:36 PM; Updated: Aug. 14, 2020, 12:10 AM

A California trial court must again consider Facebook Inc.'s bid to stop a subpoena for messages and posts in a criminal suit, this time using seven factors laid out Thursday by the state’s high court.

The California Supreme Court declined to rule on highly anticipated constitutional issues implicated in the case, deciding the trial court must first determine whether the subpoena was enforceable, using the seven factors.

In the criminal case, Lance Touchstone, who was charged with attempted murder, seeks his victim’s Facebook communications, including restricted posts and private messages, before and after the shooting. Touchstone claims posts from the victim’s account could help prove he was acting out of self-defense.

A trial judge initially ruled in Touchstone’s favor, finding he had a right to see his victim’s posts despite Facebook’s obligations under the Stored Communications Act to keep user information confidential.

“The court wisely left undecided the key statutory and constitutional issues, which opens the door for more litigation challenging how the SCA applies to Facebook and other major tech companies, and whether it blocks criminal defendants’ rights to access evidence to prove their innocence,” Rebecca Wexler, a professor at University of California, Berkeley, Law School, said. “I also think the opinion reflects a real skepticism of Facebook’s claims about the SCA, and an openness to holding in the future that this statute should not—and does not—block criminal defendants’ rights.”

Other observers believe the court should have concluded that federal law bars the disclosure, as certain other courts have done.

“Even assuming the lower court finds a good cause, it is not enough that the defendant wants the discovery when a federal law bars it and there are other means available to get it without rendering a statute unconstitutional,” said Albert Gidari, consulting director of privacy at Stanford Law School’s Center for Internet & Society.

The suggestion that Facebook is neither a provider of electronic communication services nor a remote computing service—both protected by the SCA—because it advertises or derives some benefit from users is far fetched and would eliminate any expectation of privacy in a user’s stored communications, Gidari said.

“Imagine the world we would be in if every stored communication on social media was subject to subpoena in any litigation from divorce to bankruptcy to tort to contract or other disputes,” Gidari said. “Congress made that decision clearly when it passed the SCA, leaving litigants to get discovery from those who were parties to or otherwise had access to the communications.”

Seven Things

Trial courts must explicitly consider and balance seven factors when ruling on a motion to quash a subpoena directed to a third party, the high court said, concluding the lower court had failed to adequately consider the most relevant factors when upholding the subpoena.

The seven “Alhambra factors” stem from instructions in a California Court of Appeal, Second District, decision on whether a defendant should be permitted to obtain discovery of requested material, and must be applied to the Facebook subpoena, the court said:

  • Has the defendant showed a “plausible justification” for acquiring documents from a third party?
  • Is the sought material adequately described and not overly broad?
  • Is the material reasonably available to the third party, and not readily available from other sources?
  • Would production violate confidentiality or privacy rights, or intrude on protected governmental interest?
  • Is the request timely?
  • Would the time required to produce the information necessitate an unreasonable delay in the trial?
  • Would production of the information place an unreasonable burden on the third party?

Enforceable?

For Touchstone’s subpoena, the trial court didn’t address whether he had shown plausible justification for acquiring the restricted posts and private messages, the potential overbreadth of the subpoena, or his ability to get the material from other sources, Chief Justice Tani Gorre Cantil-Sakauye wrote for the court.

Cantil-Sakauye also addressed the parties’ efforts to explore Fifth and Sixth Amendment issues implicated in the case.

“In light of the potential significance of all of these issues, however, we conclude it is preferable to reserve judgment on these questions until we can be confident that we are dealing with an otherwise enforceable subpoena,” Cantil-Sakauye said.

She wrote separately to explore Touchstone’s argument that Facebook’s business model set it outside the ambit of the Stored Communications Act, noting the court hadn’t yet determined that the social media platform was a provider of either electronic communication services or remote computing services under the act.

Both categories should be updated or replaced by Congress, Cantil-Sakauye concluded.

Judge Mariano-Florentino Cuéllar wrote separately to encourage courts to take up matter of how broadly to read the SCA, in particular whether it protects Facebook and others from a duty to honor subpoenas issued by state courts.

“The companies storing ever-expending troves of data about our lives would surely benefit from greater clarity about the full extent of their responsibility to honor a valid subpoena,” he wrote. “So would the people of California.”

Justices Ming W. Chin, Carol A. Corrigan, Goodwin H. Liu, Leondra R. Kruger and Joshua P. Groban joined the opinion of the court.

Perkins Coie LLP and Gibson, Dunn & Crutcher LLP represent Facebook. The Public Defenders Office represents Touchstone.

The case is Facebook Inc. v. Superior Ct. of San Diego Cty., 2020 BL 306407, Cal., No. S245203, 8/13/20.

—With assistance from Clare Roth and Daniel R. Stoller.

(Updated to include additional input from a Stanford privacy expert.)

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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