Meta Platforms, Inc. v. Dist. of Columbia

301 A.3d 740

META PLATFORMS, INC., Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 22-CV-0239

District of Columbia Court of Appeals.

Argued January 31, 2023

Decided September 14, 2023

Catherine M.A. Carroll, Washington, DC, with whom Ronald C. Machen, Washington, DC, George P. Varghese, Boston, MA, Ari Holtzblatt, and Joshua S. Lipshutz, Washington, DC, were on the brief, for appellant.

Ashwin P. Phatak, Principal Deputy Solicitor General, with whom Karl A. Racine, Attorney General for the District of Columbia at the time, Caroline S. Van Zile, Solicitor General, and Stacy L. Anderson, Senior Assistant Attorney General, were on the brief, for appellee.

Before Blackburne-Rigsby, Chief Judge, Deahl, Associate Judge, and Steadman, Senior Judge.

Concurring opinion by Associate Judge Deahl at page 760.

Deahl, Associate Judge:

The District has subpoenaed Meta Platforms, the operator of the social media site Facebook, for documents related to Meta's enforcement of its COVID-19 misinformation policies. The District is investigating potential violations of the Consumer Protection Procedures Act, or CPPA, D.C. Code §§ 28-3901 to - 3913, alleging that Meta has misrepresented to the District's consumers the degree to which it polices misinformation posted to its platform about the COVID-19 vaccine. Meta refused to comply with the subpoena, and the Superior Court issued an order enforcing the subpoena. Meta now appeals that order.

Meta raises two arguments in support of its view that the District's subpoena is unenforceable. Its first argument concerns the Stored Communications Act, or SCA, 18 U.S.C. §§ 2701 to 2711. Meta argues that § 2703 of the SCA requires the District to procure a warrant in order to compel the disclosure of the documents it seeks. Its second argument is grounded in the Constitution. Meta argues that the District's subpoena infringes on both its and its users’ First Amendment rights to free speech and free association. Like the trial court, we disagree with Meta as to both points, and affirm.

I.Superior Court Proceedings

This case arises from an ongoing investigation by Attorney General for the District of Columbia into Meta's content moderation practices. Throughout the COVID-19 pandemic, Meta made various public statements about its efforts to police the spread of misinformation on its platform. In December 2020, for example, the company announced that it would be "remov[ing] false claims that COVID-19 vaccines contain microchips, or anything else that isn't on the official vaccine ingredient list." Several months later, Meta unveiled an expansion of this policy, noting "a particular focus on pages, groups, and accounts that violate these rules." By August 2021, Meta reported that these efforts had led to the removal of 20 million items of content and over 3,000 accounts, pages, and groups for repeat violations.

The District, perceiving a mismatch between these public statements and the widespread dissemination of vaccine misinformation on Facebook, is investigating Meta's potential violations of the CPPA. That statute, which prohibits unfair and deceptive trade practices, authorizes the District to conduct "investigation[s] to determine whether to seek relief under" its provisions, including by issuing subpoenas to "compel production of records, books, papers, contracts, and other documents." D.C. Code § 28-3910(a). Relying on this authority, the District issued a subpoena demanding the production of the following:

Documents sufficient to identify all Facebook groups, pages, and accounts that have violated Facebook's COVID-19 misinformation policy with respect to content concerning vaccines, including the identi[t]y of any individuals or entities associated with the groups, pages, and accounts; the nature of the violation(s); and the consequences imposed by Facebook for the violation, including whether content was removed or banned from these sources.

This demand was eventually narrowed to only those documents related to public posts, or posts that were so widely accessible as to be functionally public. ¹

Meta refused to comply with the subpoena, and so the District brought an enforcement action in Superior Court. In that litigation, Meta principally argued that the government may compel the production of electronic communications only by procuring a warrant, citing to a provision of the SCA, 18 U.S.C. § 2703(a). The trial court disagreed with that reading of the statute. It instead reasoned that because the District is targeting only public posts, the SCA's "consent exception," § 2702(b)(3), permitted Meta to make the disclosures, and Meta was therefore required to comply with the District's valid subpoena (more on these provisions in a moment). Meta also raised a First Amendment challenge to the subpoena, arguing that compelling it to disclose the targeted documents would chill both its and its users’ First Amendment rights of free speech and association. The court again disagreed, concluding that the subpoena did not infringe upon either Meta's or its users’ First Amendment rights.

Meta now appeals, pressing the same two arguments that it raised before the trial court. First, it argues that the SCA precludes the government from compelling disclosure of the targeted documents via subpoena, as the SCA requires it to instead procure a warrant. Second, it argues that the subpoena violates its and its users’ First Amendment rights of free speech and association. We address Meta's statutory argument concerning the proper interpretation of the SCA first, and then turn to its First Amendment challenges.

II.

The proper interpretation of the SCA is a question of law we review de novo. Facebook, Inc. v. Wint , 199 A.3d 625, 628 (D.C. 2019).

A. Background of the Stored Communications Act

Congress passed the SCA in 1986 to fill a perceived hole that technological advances had poked in the Fourth Amendment's protections of private communications and records. For most of our country's history, people typically kept their private communications and records in their homes or places of business, and the government generally needed a warrant supported by probable cause to seize those materials. See Coolidge v. New Hampshire , 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (the Fourth Amendment's warrant requirement is "subject only to a few specifically established and well delineated exceptions").

The advent of email and other forms of electronic communications and storage changed that, and raised serious questions about the Fourth Amendment's applications to these new technologies. Electronic communications typically must be disclosed to third-party service providers, who then transmit messages to their intended recipients. Those third-party service providers might themselves disclose the communications to the government, offering a potentially massive end run on the Fourth Amendment's protections of private materials. See United States v. Miller , 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) ("[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by [them] to Government authorities."). But see Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2217, 201 L.Ed.2d 507 (2018) (declining to extend Miller to cell-site location information a person reveals to their wireless carrier). ²

The SCA sought to fill that potential gap by providing "a set of Fourth Amendment-like privacy protections by statute," limiting "the ability of [service providers] to voluntarily disclose information about their customers and subscribers to the government." Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It , 72 Geo. Wash. L. Rev. 1208, 1212-13 (2004). Two of the SCA's provisions are particularly crucial to this appeal.

First is § 2702, which precludes service providers from disclosing their users’ communications or records, subject to certain exceptions. Section 2702 states that the provider of an "electronic communication service" may not knowingly divulge "the contents of a communication while in electronic storage by that service." 18 U.S.C. § 2702(a)(1). ³ The provision then lists nine exceptions to that general prohibition, including: disclosures "to an addressee or intended recipient of" the communication, id. § 2702(b)(1) ; disclosures "with the lawful consent of the originator or an addressee or intended recipient of" the message, id. § 2702(b)(3) ; and disclosures "as otherwise authorized in [ § 2703 ]," discussed immediately below. Id. § 2702(b)(2). Section 2702(a) "broadly prohibits providers from disclosing the contents of covered communications." Wint , 199 A.3d at 628. But when one or more of the nine § 2702(b) exceptions apply, we have held that "the SCA is no obstacle" to compelling disclosure of communications via ordinary legal process, like subpoenas. Facebook, Inc. v. Pepe , 241 A.3d 248, 253 (D.C. 2020).

Second is § 2703, which confers on government entities alone the power to compel disclosure of electronic communications and records, even when no § 2702(b) exception applies. The SCA grants private parties no similar authority. Under § 2703, the government may compel via court order a narrow set of non-content records, including a subscriber or customer's name, address, and means of payment. 18 U.S.C. § 2703(c)(2), (d). As for the contents of electronic communications, like the text of an email, the statutorily required process for government-compelled disclosure depends on how long the communication has been in electronic storage. When it has been in storage for more than 180 days, § 2703(b) permits the government to compel its disclosure so long as it provides prior notice to the user and obtains an administrative subpoena or court order provided for in § 2703(d). But when the communication has been in storage for 180 days or less, the SCA authorizes...