Social Media—Privacy Objections to Subpoena

Social Media—Privacy Objections to Subpoena


Facebook, Inc. v. Superior Court (Hunter), Case No. S230051 (5/24/18)

Criminal defendants served Facebook, Instagram, and Twitter with subpoenas seeking public and private communications, including any deleted posts or messages, from the social media accounts of the homicide victim and a prosecution witness. The providers asserted the Stored Communications Act (18 U.S.C. § 2701 et seq.) prohibited disclosure of any communication, whether it was configured to be public (where the user placed no restrictions on who might access it) or private or restricted (configured to be accessible to only authorized recipients). Moreover, they maintained, none of various exceptions to the prohibition on disclosure applied.

The trial court denied motions to quash, ruling that denial of discovery would violate the criminal defendants’ constitutional rights under the Fifth and Sixth Amendments. The Court of Appeal disagreed and directed the trial court to quash the subpoenas.

The Supreme Court affirmed in part and reversed in part. The Court held that communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted, were not discoverable. But communications that were configured by the registered user to be public, and that remained so configured at the time the subpoenas were issued, can and must be disclosed pursuant to a subpoena that is authorized under state law. The providers do not have discretion to refuse to comply with a subpoena. See Negro v. Superior Court (2014) 230 Cal.App.4th 879.

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