Facebook, Inc. v. City of S.F.

4 Cal.5th 1245

417 P.3d 725

233 Cal.Rptr.3d 77

FACEBOOK, INC., et al., Petitioners,

v.The SUPERIOR COURT of the City and County of San Francisco Respondent;

Derrick D. Hunter et al., Real Parties in Interest.

S230051

Supreme Court of California.

Filed May 24, 2018

Perkins Coie, Christian Lee, James G. Snell, Palo Alto, Eric D. Miller, John R. Tyler, Sunita Bali, San Francisco; Gibson, Dunn & Crutcher, Joshua S. Lipshutz and Michael J. Holecek, Los Angeles for Petitioners.

Mayer Brown and Donald M. Falk, Palo Alto for Google LLC as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Jose Pericles Umali, San Francisco for Real Party in Interest Derrick D. Hunter.

Susan B. Kaplan and Janelle E. Caywood, San Francisco for Real Party in Interest Lee Sullivan.

Jeff Adachi, Public Defender (San Francisco), Matt Gonzalez, Chief Attorney, and Dorothy Bischoff, Deputy Public Defender, as Amici Curiae on behalf of Respondent and Real Parties in Interest.

Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Real Parties in Interest.

David M. Porter, Sacramento; Law Offices of Donald E. Landis, Jr., Donald E. Landis, Jr., Santa Ana; Law Offices of J.T. Philipsborn and John T. Philipsborn, San Francisco for California Attorneys for Criminal Justice and National Association of Criminal Defense Lawyers as Amici Curiae on behalf of Real Parties in Interest.

CANTIL-SAKAUYE, C. J.

INTRODUCTION AND OVERVIEW

Real parties in interest Derrick Hunter and Lee Sullivan (defendants) were indicted by a grand jury and await trial on murder, weapons, and gang-related charges arising out of a drive-by shooting in San Francisco. Each defendant served a subpoena duces tecum on one or more petitioners, social media service providers Facebook, Inc. (Facebook), Instagram, LLC (Instagram), and Twitter, Inc. (Twitter) (collectively, social media providers, or simply providers). The subpoenas broadly seek public and private communications, including any deleted posts or messages, from the social media accounts of the homicide victim and a prosecution witness.

As explained below, the federal Stored Communications Act ( 18 U.S.C. § 2701 et seq., hereafter SCA or Act)¹ regulates the conduct of covered service providers, declaring that as a general matter they may not disclose stored electronic communications except under specified circumstances (including with the consent of the social media user who posted the communication) or as compelled by law enforcement entities employing procedures such as search warrants or prosecutorial subpoenas. Providers moved to quash defendants' subpoenas, asserting the Act bars providers from disclosing the communications sought by defendants. They focused on section 2702(a) of the Act, which states that specified providers "shall not knowingly divulge to any person or entity the contents of" any "communication" that is stored or maintained by that provider. They asserted that section 2702 prohibits disclosure by social media providers of any communication, whether it was configured to be public (that is, with regard to the communications before us, one as to which the social media user placed no restriction regarding who might access it) or private or restricted (that is, configured to be accessible to only authorized recipients). Moreover, they maintained, none of various exceptions to the prohibition on disclosure listed in section 2702(b) applies here. And in any event, providers argued, they would face substantial technical difficulties and burdens if forced to attempt to retrieve deleted communications and should not be required to do so.

Defendants implicitly accepted providers' reading of the Act and their conclusion that it bars providers from complying with the subpoenas. Nevertheless, defendants asserted that they need all of the requested communications (including any that may have been deleted) in order to properly prepare for trial and defend against the pending murder charges. They argued that the SCA violates their constitutional rights under the Fifth and Sixth Amendments to the United States Constitution to the extent it precludes compliance with the pretrial subpoenas in this case.

The trial court, implicitly accepting the parties' understanding of the SCA, agreed with defendants' constitutional contentions, denied providers' motions to quash, and ordered them to produce the requested communications for the court's review in camera. Providers sought, and the Court of Appeal issued, a stay of the production order. After briefing and argument, the appellate court disagreed with the trial court's constitutional conclusion and issued a writ of mandate, directing the trial court to quash the subpoenas. We granted review.

Our initial examination of the Act, its history, and cases construing it, raised doubts that section 2702 of the Act draws no distinction between public and restricted communications, and that no statutory exception to the prohibition on disclosure could plausibly apply here. In particular, we questioned whether the exception set out in section 2702(b)(3), under which a provider may divulge a communication with the "lawful consent" of the originator, might reasonably be interpreted to permit a provider to disclose posted communications that had been configured by the user to be public.

Accordingly, we solicited supplemental briefing concerning the proper interpretation of section 2702. In that briefing, all parties now concede that communications configured by the social media user to be public fall within section 2702(b)(3)'s lawful consent exception to section 2702's prohibition, and, as a result, may be disclosed by a provider. As we will explain, this concession is well taken in light of the relevant statutory language and legislative history.

The parties differ, however, concerning the scope of the statutory lawful consent exception as applied in this setting. Defendants emphasize that even those social media communications configured by the user to be restricted to certain recipients can easily be shared widely by those recipients and become public. Accordingly, they argue that when any restricted communication is sent to a "large group" of friends or followers the communication should be deemed to be public and hence disclosable by the provider under the Act's lawful consent exception. On this point we reject defendants' broad view and instead agree with providers that restricted communications sent to numerous recipients cannot be deemed to be public—and do not fall within the lawful consent exception. Yet we disagree with providers' assertion that the Act affords them "discretion" to defy an otherwise proper criminal subpoena seeking public communications.

In light of these determinations we conclude that the Court of Appeal was correct to the extent it found the subpoenas unenforceable under the Act with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted. But we conclude the court's determination was erroneous to the extent it held section 2702 also bars disclosure by providers of communications that were configured by the registered user to be public, and that remained so configured at the time the subpoenas were issued. As we construe section 2702(b)(3)'s lawful consent exception, a provider must disclose any such communication pursuant to a subpoena that is authorized under state law.

Ultimately, whether any given communication sought by the subpoenas in this case falls within the lawful consent exception of section 2702(b)(3), and must be disclosed by a provider pursuant to a subpoena, cannot be resolved on this record. Because the parties have not until recently focused on the need to consider the configuration of communications or accounts, along with related issues concerning the reconfiguration or deletion history of the communications at issue, the record before us is incomplete in these respects. Accordingly, resolution of whether any communication sought by the defense subpoenas falls within the statute's lawful consent exception must await development of an adequate record on remand.

We will direct the Court of Appeal to remand the matter to the trial court to permit the parties to appropriately further develop the record so that the trial court may reassess the propriety of the subpoenas under the Act in light of this court's legal conclusions.

I. FACTS AND LOWER COURT PROCEEDINGS

A. Grand Jury Proceedings and Indictment²

According to testimony before the grand jury, at midday on June 24, 2013, Jaquan Rice, Jr., was killed and his girlfriend, B.K., a minor, was seriously injured in a drive-by shooting at a bus stop in the Bayview district of San Francisco. Various surveillance videos showed a vehicle and someone firing a handgun from the rear window on the driver's side. A second person was depicted leaving the vehicle from the rear passenger-side door and firing a gun with a large attached magazine.

Witnesses identified defendant Derrick Hunter's 14-year-old brother, Quincy, as one of the shooters. During questioning in the early morning hours after the events, police homicide detectives told Quincy that they had "pulled all Instagram ... [and] Facebook stuff," and were aware that he knew the shooting victim. Quincy related that the victim had "tagged" him on Instagram in a video featuring guns. The detectives responded that they had been "working all day" on the matter and had "seen those posts." Quincy admitted that he shot the victim six times—and asserted that the victim "would have done the same thing to us."³

Quincy stated that "Nina," his girlfriend's sister, had provided the car in which he, his brother, and one other male had driven. Within a few minutes of the shooting, police had stopped Nina,...