(Super. Ct. No. 08F09791) ORIGINAL PROCEEDING: Petition for Writ of Prohibition, Michael P. Kenny, Judge. Petition denied, stay vacated.
The opinion of the court was delivered by: Hull , J.
CERTIFIED FOR PUBLICATION
Following the conviction of real parties in interest for various offenses stemming from an assault, respondent court learned that one of the trial jurors, fictitiously-named Juror Number One, had posted one or more items on his Facebook account concerning the trial while it was in progress, in violation of an admonition by the court. The court conducted a hearing at which Juror Number One and several other jurors were examined about this and other claimed instances of misconduct. Following the hearing, the court entered an order requiring Juror Number One to execute a consent form pursuant to the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.) authorizing Facebook to release to the court for in camera review all items he posted during the trial.
Juror Number One filed a petition for writ of prohibition with this court seeking to bar respondent court from enforcing its order. He contends the order violates the SCA, the Fourth and Fifth Amendments to the United States Constitution, and his state and federal privacy rights.
We conclude the SCA is not applicable to the order at issue here and Juror Number One has otherwise failed to establish a violation of constitutional or privacy rights. We therefore deny the petition.
Juror Number One was a juror in the trial of People v. Christian et al., Sacramento County Superior Court case No. 08F09791 (the criminal trial) in which the defendants, real parties in interest in this writ proceeding, were convicted of various offenses stemming from the beating of a young man on Halloween night in 2008.
The criminal trial commenced in April 2010, and the jury reached its verdicts approximately two months later, on June 25. On August 10, 2010, one of the trial jurors (Juror No. 5) submitted a declaration in which she stated, among other things, that, on or about May 18, 2010, Juror Number One had "posted comments about the evidence as it was being presented during the trial on his 'Facebook Wall,' inviting his 'friends' who have access to his 'Facebook' page to respond."
On September 17, 2010, respondent court conducted a hearing on this and other allegations of juror misconduct. Four jurors were examined, including Juror Number One and Juror No. 5. Juror No. 5 testified that she did not learn about the Facebook postings until after the trial. Juror Number One had invited her to be a Facebook "friend" and this gave her access to his postings on Facebook, including those during the trial. This is when she saw the post mentioned in her declaration. According to Juror No. 5, one person had responded to the post that he or she liked what Juror Number One had said.
Juror Number One admitted that he posted items on his Facebook account about the trial while it was in progress. However, he indicated those posts contained nothing about the case or the evidence but were merely indications that he was still on jury duty. Juror Number One acknowledged that on one occasion he posted that the case had been boring that day and he almost fell asleep. According to Juror Number One, this was the day they were going through phone records and he posted that he was listening to piles and piles of "Metro PCS records." Juror Number One testified that he posted something every other day on his Facebook account and later tried to delete some of his posts. He denied reading any responses he received from his "friends" to these postings.
The other two jurors who were examined by the court had nothing to contribute on this issue.
At the conclusion of the hearing, respondent court indicated there had been clear misconduct by Juror Number One, but the degree of such misconduct is still at issue.
On October 7, 2010, counsel for real party in interest Royster issued a subpoena to Facebook to produce "[a]ll postings for [Juror Number One] dated 3/01/2010 to 10/06/2010." Attached was an order from respondent court compelling Facebook to "release any and all information, including postings and comments for Facebook member [Juror Number One]."
Facebook moved to quash the subpoena, asserting disclosure of the requested information would violate the SCA. In its memorandum in support of the motion to quash, Facebook asserted the requested information can be obtained from Juror Number One himself inasmuch as he "owns and has access to his own Facebook account, and can disclose his Facebook postings without limitation."
On January 28, 2011, counsel for real party in interest Royster issued a subpoena to Juror Number One to produce "[a]ny and all documents provided to [him] by Facebook" and "[a]ny and all posts, comments, emails or other electronic communication sent or received via Facebook during the time [he was] a juror in the above-referenced matter."
On February 3, 2011, Juror Number One moved to quash the subpoena.
The following day, respondent court granted Juror Number One's motion to quash the subpoena based on overbreadth. However, the court also issued an order requiring Juror Number One to turn over to the court for in camera review all of his Facebook postings made during trial.
Juror Number One filed a petition with this court seeking to bar respondent court from enforcing its February 4, 2011, order. We summarily denied the petition. However, on March 30, 2011, the California Supreme Court granted review and transferred the matter back to us for further consideration. The high court also issued a temporary stay of respondent court's order.
On April 5, 2011, we vacated our prior order denying the petition, issued an order to show cause to respondent court and ordered that the temporary stay remain in effect.
Congress passed the SCA as part of the Electronic Communications Privacy Act of 1986 (Pub.L. No. 99-508 (Oct. 21, 1986) 100 Stat. 1860 et seq.) to fill a gap in the protections afforded by the Fourth Amendment. As one commentator observed: "The Fourth Amendment offers strong privacy protections for our homes in the physical world. Absent special circumstances, the government must first obtain a search warrant based on probable cause before searching a home for evidence of crime. When we use a computer network such as the Internet, however, a user does not have a physical 'home,' nor really any private space at all. Instead, a user typically has a network account consisting of a block of computer storage that is owned by a network service provider, such as America Online or Comcast. Although a user may think of that storage space as a 'virtual home,' in fact that 'home' is really just a block of ones and zeroes stored somewhere on somebody else's computer. This means that when we use the Internet, we communicate with and through that remote computer to contact other computers. Our most private information ends up being sent to private third parties and held far away on remote network servers." (Kerr, A User's Guide to the Stored Communications Act--And a Legislator's Guide to Amending It (2004) 72 Geo. Wash. L.Rev. 1208, 1209-1210, fns. omitted (Kerr).) The Fourth Amendment provides no protection for information voluntarily disclosed to a third party, such as an Internet Service Provider (ISP). (See Smith v. Maryland (1979) 442 U.S. 735, 743-744 [61 L.Ed.2d 220, 229]; United States v. Miller (1976) 425 U.S. 435, 443 [48 L.Ed.2d 71, 79].)
To remedy this situation, the SCA creates a set of Fourth Amendment-like protections that limit both the government's ability to compel ISP's to disclose customer information and the ISP's ability to voluntarily disclose it. (Kerr, supra, at pp. 1212-1213.) "The [SCA] reflects Congress's judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility. Just as trespass protects those who rent space from a commercial storage facility to hold sensitive documents, [citation], the [SCA] protects users whose electronic communications are in electronic storage with an ISP or other electronic communications facility." (Thoefel v. Farey-Jones (9th Cir. 2003) 359 F.3d 1066, 1072-1073.)
The SCA addresses two classes of service providers, those providing electronic communication service (ECS) and those providing remote computing service (RCS). An ECS is "any service which provides to users thereof the ability to send or receive wire or electronic communications." (18 U.S.C. § 2510(15); see 18 U.S.C. § 2711(1).) An RCS provides "computer storage or processing services by means of an electronic communications system." (18 U.S.C. § 2711(2).) Subject to certain conditions and exceptions, the SCA prohibits ECS's from knowingly divulging to any person or entity the contents of a communication while in "electronic storage" (18 U.S.C. § 2702(a)(1)) and prohibits RCS's from knowingly divulging the contents of any communication "which is carried or maintained on that service" (id. at § 2702(a)(2)). One exception is recognized where the customer or subscriber has given consent to the disclosure. (Id. at § 2702(c)(2).)
Any analysis of the SCA must be informed by the state of the technology that existed when the SCA was enacted. (Robison, Free at What Cost?: Cloud Computing Privacy Under the Stored Communications Act (2010) 98 Geo. L.J. 1195, 1204 (Robison).) "[C]omputer networking was in its infancy in 1986. Specifically, at the time Congress passed the SCA in the mid-1980s, 'personal users [had begun] subscribing to self-contained networks, such as Prodigy, CompuServe, and America Online,' and 'typically paid based on the amount of time they were connected to the network; unlike today's Internet users, few could afford to spend hours casually exploring the provider's network. After connecting to the network via a modem, users could download or send e-mail, post messages on a "bulletin board" service, or access information.' [Citation.] Notably, the SCA was enacted before the advent of the World Wide Web in 1990 and before the introduction of the web browser in 1994." (Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010) 717 F.Supp.2d 965, 972, fn. 15 (Crispin), quoting from Robison, supra, at p. 1198.) In light of rapid ...