Thursday, August 14, 2020
By Sandra Hong, Staff Writer
The California Supreme Court yesterday opted not to decide the validity of a subpoena served on Facebook, Inc. seeking private posts and messages to shore up an attempted-murder defense, declaring that the trial judge failed to weigh competing considerations.
Chief Justice Tani Cantil-Sakauye wrote the majority opinion which directs Div. One of the Fourth District Court of Appeal to remand the matter to the San Diego Superior Court with instructions to vacate its denial of Facebook’s motion to quash the subpoena, and reconsider the motion in light of a seven-factor test.
The test she endorsed was laid down in a 1988 decision by Div. Three of the Court of Appeal for this district in City of Alhambra v. Superior Court.
There, Justice H. Walter Croskey (since deceased) said a trial court, in determining whether a criminal defendant should obtain pretrial discovery in the face of competing considerations, should consider these factors:
“(1) whether the material requested is adequately described,… whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources), (3) whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental interest, (4) whether the defendant has acted in a timely manner, (5) whether the time required to produce the requested information will necessitate an unreasonable delay of defendant’s trial,…(6) whether the production of the records containing the requested information would place an unreasonable burden on the governmental entity involved and (7) whether the defendant has shown a sufficient plausible justification for the information sought.”
“We conclude that the trial court below abused its discretion when ruling on the motion to quash by failing to apply the seven-factor Alhambra test. Under these circumstances we find it prudent to afford the trial court an opportunity to consider the good cause issue anew, this time with full participation by all three parties.”
In the trial court, the defendant had been allowed to proceed on an ex parte basis.
Defendant Lance Touchstone seeks to have Facebook compelled to release private posts and messages from the account of Jeffrey Renteria, which Touchstone contends is crucial to developing his self-defense claim. Touchstone is accused of shooting Renteria multiple times in 2016 as Renteria was entering Touchstone’s sister’s apartment.
Renteria was the sister’s boyfriend at the time.
Touchstone maintains he acted in self-defense and contends that Renteria’s Facebook posts demonstrate a violent and volatile character. Renteria deleted his Facebook account after the incident, and the only way to obtain his account information is through Facebook directly.
Cantil-Sakauye’s opinion agrees neither with San Diego Superior Court Judge Kenneth K. So’s action in denying Facebook’s motion to quash, nor with the Court of Appeal which, on Sept. 26, 2017, in an opinion by Acting Presiding Justice Gilbert Nares, issued a writ of mandate ordering the trial court to grant the motion to quash. The chief justice said her opinion was designed to “provide direction to the trial court and parties, both for the benefit of this litigation and other similar cases.”
Stored Communications Act
Facebook argued that it is protected from disclosing Renteria’s private account information under the federal Stored Communications Act (“SCA”), contained in 18 USC §2701 et seq., which prohibits an “electronic communications service provider” from sharing user communications and account records.
In 2018, the high court issued a decision in Facebook v. Superior Court (Hunter), holding that Facebook could not assert that the SCA served as a shield to block the enforcement of a subpoena when the requested communication had already been made public. The court allowed parties in the present action to file supplemental briefs, in which the parties argued whether Facebook’s business model removed it from subpoena protection under the SCA or whether its users consent to disclosure of all communications.
Touchstone and San Diego District Attorney Summer Stephan, as intervenor, argued that Facebook’s business model places the company outside the reach of the SCA because it mines, stores, and analyzes user data and shares it with third parties for advertising purposes. This business model makes Facebook subject to a viable state subpoena seeking content of user communications, they contended.
‘Electronic Communications Service Provider’
But Facebook countered that it qualifies as an electronic communications service provider because the communications are either in “temporary of intermediate storage” or are housed “for purposes of backup protection.”
Law enforcement has been able to compel information under several exceptions of the SCA, but no such exception has been made for criminal defendants.
Touchstone argued that by shielding Facebook from his subpoena, the SCA is violating his rights to due process and confrontation, cross-examination, and counsel under the Fifth and Sixth amendments.
Cantil-Sakauye’s opinion did not resolve the constitutional claims or SCA arguments raised, explaining that the underlying problems with the subpoena needs to be resolved first. However, in separate concurring opinions, Cantil-Sakauye and Justice Mariano-Florentino Cuéllar urged courts to focus special attention to resolving questions about the reach of the SCA.
“The companies storing ever-expanding troves of data about our lives would surely benefit from greater clarity about the full extent of their responsibility to honor a valid subpoena,” Cuéllar wrote.
The case is Facebook, Inc. v. Superior Court, Touchstone, RPI, 2020 S.O.S. 3801.
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