Social media privacy rights have been a hot topic in the news recently, especially when it comes to criminal prosecutions. Earlier this month, the First Appellate District Court in California ruled on some of these privacy issues related to Facebook, Twitter and Instagram. The case at issue, Facebook, Inc., et al., v. The Superior Court of San Francisco City and County (“Facebook”), challenged the constitutionality of certain protections under the federal Stored Communications Act (SCA), which is a part of the Electronic Communications Privacy Act. The case involved an alleged gang murder and attempted murder resulting from a drive-by shooting. A defendant charged with the murder claimed he had committed the crime because the victim had repeatedly threatened him in person and on social media postings on Facebook and Instagram. The victim had also tagged the defendant in a video clip on Instagram that depicted firearms.
Additionally, an expert from the gang task force testified before the grand jury that gang members use social media as a way of cyber banging (engaging in gang activity on the internet), detailing how law enforcement heavily relies on social media records to investigate and prosecute gang members. Specifically, the expert relied, in part, on social media records as evidence that the defendants and victims were members of rival gangs. Based on this information, the defendants in the case were also charged with gang enhancements, which increased the sentences the defendants would receive if convicted.
The defendants subpoenaed the Facebook, Instagram, and Twitter records of the alleged victims, as well as those of the prosecution’s main witness, whose car was used in the drive-by shooting. In subpoenaing the social media records, the defendants claimed that the information requested would contain exculpatory evidence- i.e., evidence that is favorable to the defendants or that could help exonerate the defendants. Unfortunately, the appeals court denied the defendants access to the requested information, finding that the SCA prevents disclosure of a user’s private social media accounts to the defense during the pretrial stage of criminal prosecutions.
Under the SCA, a person or entity providing an electronic communication service to the public (such as Facebook) shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service. What this means to users of Facebook, Twitter, Instagram or any other social networking service, is that these social networking websites are not allowed to release a user’s personal account information or account contents (i.e., pictures, posts, links, etc.) to a third party.
There are exceptions to this rule of course, many of which permit the release of such private information to the prosecution in a criminal case. For example, the SCA provides for disclosure of a user’s content to a governmental agency, without notice to the user of the site, so long as the government obtains a warrant. Additionally, the government may also access a user’s personal information, with notice to the user, by obtaining an administrative subpoena. Unfortunately, these exceptions do not permit the release of private information to a defendant or defense counsel in a criminal case, at least not before trial.
Under this ruling, while the prosecution may obtain a warrant or subpoena for evidence contained in a user’s online social media account as evidence to convict a person, the defense is not entitled to the same access to prove innocence. Although the defendants in the Facebook case argued that they were being denied their constitutional rights to confront witnesses and adequately prepare a defense, the appellate court disagreed. The Court reasoned that a criminal defendant’s right to pretrial discovery is limited, noting that if pretrial disclosure of a user’s social media account information were permitted, a serious risk would arise that privileged material is being disclosed unnecessarily.
The Court in the Facebook case emphasizes that its ruling is limited to the pretrial context, meaning that it does not preclude defendants from seeking the social media records once the case reaches the trial phase. However, for a criminal defendant, this case represents a serious departure from the constitutional protections afforded to defendants under the Sixth Amendment. As attorney Jeff Hammerschmidt notes,
“More than 95% of criminal cases settle prior to trial, which means that in 100% of the cases, prosecutors can use social media to convict, but in more than 95% of those cases, the defense will not be able to subpoena social media to prove innocence. This decision is problematic for obtaining truth and justice for those accused of crimes. Imagine a domestic violence case in which the alleged victim privately sends a message to a friend on Facebook admitting she lied to the police about her boyfriend attacking her because she was upset with him for trying to end the relationship. One single post could make the difference between a man spending years in prison for a crime he didn’t commit and justice being served.”
While this case may be appealed to the California Supreme Court, and perhaps even the United States Supreme Court, for now, criminal defendants throughout the State of California will be denied pretrial access to potential exculpatory evidence contained within social media accounts.