I think it is fair to say that social media has become nearly ubiquitous in the United States and most other developed countries. Although the number of people using social media is now in the hundreds of millions, most users don’t realize that, regardless of their “settings,” what they post online is not private and can and often is used against them in litigation. Even otherwise innocent posts, such as status updates or photographs can be accessed by lawyers once a lawsuit is filed.
I have written about this subject many times and have tracked the legal development of social media discovery over the years. You can read some of these articles here:
Although it is true that in civil lawsuits (think personal injury or medical malpractice cases), an injured person can be forced to turn otherwise private social media posts over to the defense, defendants are not permitted to serve subpoenas directly on the social media providers. In other words, if you file a lawsuit against a doctor alleging medical malpractice, a court may force you to turn over your social media content, but a defendant can’t force to the social media provider to turn it over. The reason civil litigants can’t force social media providers to turn over a user’s private information in a civil suit is because a federal law called the “Stored Communication Act” (SCA) prohibits it.
Although the SCA categorically prohibits civil litigants from subpoenaing private posts from social media providers, there are exceptions in criminal cases. Criminal defendants have due process rights and a Constitutional right to cross exam witnesses who testify against them. Constitutional rights are fundamental and trump all other federal laws, including the SCA. With these rights in mind, when Congress passed the SCA, it created limited exceptions that allow prosecutors and potentially defendants to force social media providers such as Facebook and Instagram to turn over private user information.
In a recent San Francisco criminal case, the intersection between the SCA and a criminal defendant’s right to subpoena Facebook, Instagram and Twitter was squarely in the cross-hairs of the California Court of Appeals. The Court of Appeals issued a very interesting ruling concluding that criminal defendants do not have a Constitutional right to subpoena Facebook, Instagram and Twitter for private user records before trial, but they may be able to do so during trial.
Here is the thumb-nail factual setup: prosecutors in San Francisco charged Derrick Hunter for the gang-related murder of Jaquan Rice in connection with a drive-by shooting on June 24, 2013. The prosecution alleged that Hunter and his younger brother (an unnamed minor) shot and killed Rice because Rice had posted messages and videos on Facebook and Instagram threatening Hunter’s younger brother. Hunter and his minor brother were members of a gang called “Big Block,” while Rice was a member of a rival gang called “West Mob.” Another defendant, Lee Sullivan was also alleged to be involved in the shooting and witnesses reported that a woman was driving the car involved in the drive-by.
Minutes after the shooting Renesha Lee was spoted driving the drive-by car. She told the police that she had let the Hunter brothers and Sullivan borrow her car and they took her home just before the shooting. Lee is Sullivan’s former girlfriend and agreed to be a witness for prosecution.
Prior to trial, Sullivan subpoenaed both Facebook, Instagram and Twitter seeking all public and private content from both Lee and Rice’s account. Hunter subpoenaed Twitter seeking all of Lee’s public and private content. Both defendant’s argued that, irrespective of the SCA, they had a Constitutional right to this information in order to prepare a proper cross-examination.
Sullivan argued that Lee’s private postings would show that she was jealous of his relationship with another woman and thus was motivated to testify against him out of revenge.
Hunter argued that Rice’s private postings were relevant to show that Rice was violent and threatened Hunter’s younger brother.
The trial court granted the defendants’ request to subpoena Facebook, Twitter and Instagram, concluding that the defendants had a Constitutional right to the material before trial so that they could adequately cross exam witnesses. Facebook, Twitter and Instagram appealed to the Appellate Court.
The Appellate Court disagreed with the trial court. It noted that there is no Constitutional right to pretrial discovery. So, according to the Appellate Court, criminal defendants do not have a Constitutional right to subpoena private user content from Facebook, Twitter, Instagram or any other social media provider before trial. However, the Court was careful to leave the door open for criminal defendants to subpoena social media providers under certain circumstances at trial.
The Court reasoned that at the time of trial a judge would have a better understanding of the issues in the case and could better balance a defendant’s Constitutional right to cross-examination against the SCA’s goal of keeping private online material private. According to the Appellate Court, at trial the judge would be better able to balance these competing interests because he or she would have had the opportunity to hear testimony and consider evidence.
The Appellate Court’s decision is interesting. On the one hand it shows a keen interest in protecting social media users and providers from unlimited and unsupervised subpoenas from criminal defendants. On the other hand, it seems impractical and potentially unfair to require a criminal defendant to wait until trial begins to get potentially relevant social media material. Criminal defendants’ risk losing their fundamental right to liberty, shouldn’t their attorneys be given time to prepare the best defense possible?
Regardless, the opinion is another big step in the ever evolving use of social media in litigation.