Criminal Defendants Can Use Public Facebook Posts, Court Says

MENLO PARK, CA — The California Supreme Court ruled in San Francisco Thursday that criminal defendants seeking evidence for their future trials can require social media such as Facebook, Twitter and Instagram to give them copies of posts that have already been made public.

The decision applies to social media accounts that are unrestricted, meaning that users allow any members of the public to see their communications. But the court, ruling in the case of two San Francisco murder defendants, said the defendants could not subpoena communications from social media accounts whose owners have restricted access.

The two defendants, Lee Sullivan and Derrick Hunter, are awaiting trial on charges of murder and attempted murder with gang and gun enhancements in connection with a drive-by shooting in the Bayview District
in 2013.

Sullivan and Hunter said that in order to prepare for trial, they needed information from the Facebook, Twitter and Instagram accounts of the victim and of a woman who drove the shooters. The defendants sought to subpoena both public and private communications.

The media companies argued they were protected by the U.S. Stored Communications Act, which is part of the Electronic Communications Privacy Act of 1986.

The law bars communications service providers from revealing the content of users' posts, but allows exceptions when the message writers or receivers have given permission for release of the communications and when government agencies have obtained court-approved subpoenas.

The state high court unanimously said that defendants can subpoena communications from unrestricted accounts because the owners of those accounts have already given permission for public access.

But the panel did not give Sullivan and Hunter the right to subpoena posts from account owners who have restricted access.

The court sent the case back to San Francisco Superior Court for determination of which accounts of the victim and the driver were public and which were private.

Facebook said in a statement, "We're pleased with the court's decision to uphold the important privacy protections in the Stored Communications Act.

"The court's opinion shows that Facebook and other companies acted properly in refusing to disclose people's private content in response to subpoenas from criminal defendants. We will continue to advocate for people's
privacy," the statement said.

The court ruled narrowly and left a number of issues to be decided or clarified later by the trial judge or possible future appeals. Sullivan and Hunter argued that their constitutional right to a fair trial should give them access to both restricted and unrestricted communications.

But the court said it was ruling only on the basis of the exception in the law and was not addressing the constitutional claim.

The court also declined to decide whether criminal defendants can subpoena posts from accounts that were originally unrestricted but later restricted in access. It left that issue for the trial judge to consider.

Prosecutors can subpoena private communications under the exception in the law for government entities, and prosecutors are required to give criminal defendants any potentially favorable evidence they have obtained.

At an early point in the dispute, Facebook attorneys suggested that Sullivan and Hunter could try to get the communications they wanted by asking prosecutors to obtain them. But the defendants' lawyers said that to achieve a fair trial, they needed to be able to review the full range of content of the communications.

— Bay City News; Image via Shutterstock