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

240 Cal.App.4th 203

192 Cal.Rptr.3d 443

FACEBOOK, INC., et al., Petitioners

v. The SUPERIOR COURT of San Francisco City and County, Respondent;Derrick D. Hunter et al., Real Parties in Interest.

A144315

Court of Appeal, First District, Division 5, California.

Filed September 8, 2015

Perkins Coie, James G. Snell, Palo Alto and Sunita Bali, San Francisco, for Petitioners.

No appearance for Respondent.

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

Susan 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 Amicus 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.

Donald E. Landis, Jr., Assistant Public Defender (Monterey); Law Offices of J.T. Philipsborn and John T. Philipsborn, San Francisco, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Real Parties in Interest.

Opinion

BRUINIERS, J.

Use of social media, in its myriad of forms, has become ubiquitous in our society. Petitioners Facebook, Inc. (Facebook), Instagram, LLC (Instagram), and Twitter, Inc. (Twitter) each provide digital platforms on which users may post communications, commentary, photographs, video clips, or other items the user may wish to share within a social network. Evidence gathered from social media is becoming equally ubiquitous in our courtrooms. Real parties in interest Derrick Hunter and Lee Sullivan (Defendants) were indicted, and await trial, on murder, weapons, and gang-related charges stemming from a drive-by shooting. Each of the Defendants served a subpoena duces tecum on one or more of the petitioners seeking both public and private content from user accounts of the murder victim and a witness.

Petitioners moved to quash the subpoenas, objecting under the federal Stored Communications Act (SCA or Act) (§ 18 U.S.C. § 2701 et seq.)¹ to the compelled disclosure of the content of their users' electronic communications. Section 2702(a) provides that electronic communication services “shall not knowingly divulge” the contents of a user communication to anyone, with limited exceptions (§ 2702(b)). 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.²

The trial court denied petitioners' motions to quash and ordered petitioners to produce responsive material for in camera review. Petitioners filed the instant petition for writ of mandate and/or prohibition in this court. We issued an order staying the production order and requested opposition. After consideration of Defendants' answer, and petitioners' reply thereto, we 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. We now grant the petition and direct the trial court to issue an order quashing the subpoenas.

I. F actual Context and Procedural History³

On June 24, 2013, Jaquan Rice, Jr., was killed and B.K., a minor, was seriously injured in a drive-by shooting in the Bayview District of San Francisco. The vehicle used in the shooting was identified by surveillance video. While of poor quality, the video depicts one individual shooting a handgun from the rear passenger window on the driver's side. A second individual is seen exiting the rear passenger-side door and shooting from behind the rear of the vehicle with a handgun with a large attached magazine. The driver of the vehicle was not visible, but witnesses indicated that a woman was driving. Within minutes of the shooting, prosecution witness Renesha Lee was stopped driving the vehicle. She was the sole occupant.

Hunter's 14–year–old brother was identified by several eyewitness as one of the shooters, and he confessed to the shooting when questioned by police.⁴ Hunter's brother told police that he shot Rice because Rice had repeatedly threatened him in person and in social media postings on Facebook and Instagram. Rice also had “tagged” the boy in a video clip posted on Instagram that depicted guns.

Lee is Sullivan's former girlfriend. Lee gave varying accounts of the events of June 24, 2013, but ultimately told police that Defendants and Hunter's brother borrowed her car and took her home prior to the shooting.

In presenting the case to the grand jury, the prosecution contended that Defendants and Hunter's brother were members of Big Block, a criminal street gang, and that Rice was killed because he was a member of West Mob, a rival gang, and because Rice had publicly threatened Hunter's brother. In testimony before the grand jury, Inspector Leonard Broberg, a gang expert from the San Francisco Police Department Gang Task Force, opined that the murder and attempted murder were committed for the benefit of Big Block. Broberg testified that “gangsters are now in the 21st century and they have taken on a new aspect of being gangbangers, and they do something called cyber banging. They will actually be gangsters on the internet. They will issue challenges; will show signs of disrespect, whether it's via images or whether it's via the written word ... Facebook, Instagram, Socialcam, Vine ... [.] [¶] ... They will disrespect each other in cyberspace.” Broberg described for the grand jury a video posted by Rice on Facebook in which he rapped while giving a tour of his gang neighborhood and pointed out areas where he could be found if rival gang members wanted to find him, including the location where Rice was shot. In a subsequent declaration, Broberg averred that he “rel[ies] heavily on records from social media providers such as Facebook, Instagram, and Twitter to investigate and prosecute alleged gang members for gang crime.” Broberg said that he regularly relied on social media records in forming an opinion whether a particular crime is gang related. Broberg also said he relied, in part, on social media records as evidence that Rice and the Defendants were members of rival gangs and that the drive-by shooting was gang related.

Defendants were indicted and stand charged with, inter alia, the murder of Rice and the attempted murder of B.K. (Pen.Code, §§ 187, 664 ). Gang and firearm enhancements are alleged as to both Defendants in the indictment. (Id., §§ 186.22, subd. (b)(1), 12022, subd. (a), 12022.53, subds. (d) & (e)(1).)

Sullivan's counsel served subpoenas duces tecum (Pen.Code, § 1326, subd. (b) ) on Facebook, Instagram, and Twitter, seeking records from the social media accounts of Rice and Lee. As to Facebook, the subpoena seeks “[a]ny and all public and private content,” including, but “not limited to user information, associated email addresses, photographs, videos, private messages, activity logs, posts, status updates, location data, and comments including information deleted by the account holder” for accounts belonging to Rice and to Lee. As to Instagram, the subpoena seeks “[a]ny and all public and private content,” including, but “not limited to user information, associated email addresses, photographs, videos, private messages, activity logs, posts, location data, and comments,” as well as “data deleted by the account holder” associated with accounts belonging to Rice and Lee. Sullivan's subpoena to Twitter seeks similar information as to Lee only. Hunter's subpoena to Twitter seeks a subset of that information for “all accounts” registered to Lee. Sullivan's subpoenas also seek the identity of the custodian of records for petitioners who could authenticate the requested records.

Petitioners moved to quash the subpoenas, arguing that disclosure of the information sought was barred by the SCA. Defendants opposed, contending that their constitutional rights to present a complete defense, cross-examine witnesses, and a fair trial prevailed over the privacy rights of account holders under the SCA. In an offer of proof as to Lee's social media records, Sullivan alleged that Lee was the only witness who implicated him in the shootings, that the records would demonstrate Lee was motivated by jealous rage over Sullivan's involvement with other women, and that Lee had repeatedly threatened others with violence. Sullivan cited examples of postings on what he said was Lee's Twitter account that included a photograph of Lee holding a gun and making specific threats. In his offer of proof as to Rice's social media records, Sullivan said review of the records was required to “locate exculpatory evidence” and to confront and cross-examine Broberg. Sullivan cited Broberg's grand jury testimony and attached examples to his opposition of what he alleged were screen shots of violent video postings by Rice, asserting that the subpoenaed records would show that Rice was “a violent criminal who routinely posted rap videos and other posts threatening [Hunter's brother] and other individuals.”

Hearings on the motions to quash were held on January 7 and 22, 2015. The trial court denied petitioners' motions to quash, and ordered petitioners to produce responsive material for an in camera review by February 27.⁵ Petitioners filed a petition for writ of mandate in this court contending that the trial court abused its discretion in denying the motion to quash, and seeking a stay of the order to produce the requested materials. On February 26, we stayed the production order pending consideration of the petition and requested opposition. Sullivan submitted an answer, in which Hunter...