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Facebook, Inc. v. Superior Court (Derrick D. Hunter)

Supreme Court of California

May 24, 2018

FACEBOOK, INC., et al., Petitioners,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO Respondent; DERRICK D. HUNTER et al., Real Parties in Interest.

          San Francisco City and County Super. Ct. Nos. 13035657, 13035658 Ct.App. 1/5 A144315 Bruce E. Chan Judge

          Perkins Coie, Christian Lee, James G. Snell, Eric D. Miller, John R. Tyler, Sunita Bali; Gibson, Dunn & Crutcher, Joshua S. Lipshutz and Michael J. Holecek for Petitioners.

          Mayer Brown and Donald M. Falk for Google LLC as Amicus Curiae on behalf of Petitioners.

          No appearance for Respondent.

          Jose Pericles Umali for Real Party in Interest Derrick D. Hunter.

          Susan B. Kaplan and Janelle E. Caywood for Real Party in Interest Lee Sullivan.

          Jeff Adachi, Public Defender (San Francisco), Matt Gonzalez, Chief Attorney, and Dorothy Bischoff, Deputy Public Defender, as Amici Curiae on behalf of Respondent and Real Parties in Interest.

          Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Real Parties in Interest.

          David M. Porter; Law Offices of Donald E. Landis, Jr., Donald E. Landis, Jr.; Law Offices of J.T. Philipsborn and John T. Philipsborn for California Attorneys for Criminal Justice and National Association of Criminal Defense Lawyers as Amici Curiae on behalf of Real Parties in Interest.

          CANTIL-SAKAUYE, C. J.

         Introduction and Overview

         Real parties in interest Derrick Hunter and Lee Sullivan (defendants) were indicted by a grand jury and await trial on murder, weapons, and gang-related charges arising out of a drive-by shooting in San Francisco. Each defendant served a subpoena duces tecum on one or more petitioners, social media service providers Facebook, Inc. (Facebook), Instagram, LLC (Instagram), and Twitter, Inc. (Twitter) (collectively, social media providers, or simply providers). The subpoenas broadly seek public and private communications, including any deleted posts or messages, from the social media accounts of the homicide victim and a prosecution witness.

         As explained below, the federal Stored Communications Act (18 U.S.C. § 2701 et seq., hereafter SCA or Act)[1] regulates the conduct of covered service providers, declaring that as a general matter they may not disclose stored electronic communications except under specified circumstances (including with the consent of the social media user who posted the communication) or as compelled by law enforcement entities employing procedures such as search warrants or prosecutorial subpoenas. Providers moved to quash defendants' subpoenas, asserting the Act bars providers from disclosing the communications sought by defendants. They focused on section 2702(a) of the Act, which states that specified providers “shall not knowingly divulge to any person or entity the contents of” any “communication” that is stored or maintained by that provider. They asserted that section 2702 prohibits disclosure by social media providers of any communication, whether it was configured to be public (that is, with regard to the communications before us, one as to which the social media user placed no restriction regarding who might access it) or private or restricted (that is, configured to be accessible to only authorized recipients). Moreover, they maintained, none of various exceptions to the prohibition on disclosure listed in section 2702(b) applies here. And in any event, providers argued, they would face substantial technical difficulties and burdens if forced to attempt to retrieve deleted communications and should not be required to do so.

         Defendants implicitly accepted providers' reading of the Act and their conclusion that it bars providers from complying with the subpoenas. Nevertheless, defendants asserted that they need all of the requested communications (including any that may have been deleted) in order to properly prepare for trial and defend against the pending murder charges. They argued that the SCA violates their constitutional rights under the Fifth and Sixth Amendments to the United States Constitution to the extent it precludes compliance with the pretrial subpoenas in this case.

         The trial court, implicitly accepting the parties' understanding of the SCA, agreed with defendants' constitutional contentions, denied providers' motions to quash, and ordered them to produce the requested communications for the court's review in camera. Providers sought, and the Court of Appeal issued, a stay of the production order. After briefing and argument, the appellate court disagreed with the trial court's constitutional conclusion and issued a writ of mandate, directing the trial court to quash the subpoenas. We granted review.

         Our initial examination of the Act, its history, and cases construing it, raised doubts that section 2702 of the Act draws no distinction between public and restricted communications, and that no statutory exception to the prohibition on disclosure could plausibly apply here. In particular, we questioned whether the exception set out in section 2702(b)(3), under which a provider may divulge a communication with the “lawful consent” of the originator, might reasonably be interpreted to permit a provider to disclose posted communications that had been configured by the user to be public.

         Accordingly, we solicited supplemental briefing concerning the proper interpretation of section 2702. In that briefing, all parties now concede that communications configured by the social media user to be public fall within section 2702(b)(3)'s lawful consent exception to section 2702's prohibition, and, as a result, may be disclosed by a provider. As we will explain, this concession is well taken in light of the relevant statutory language and legislative history.

         The parties differ, however, concerning the scope of the statutory lawful consent exception as applied in this setting. Defendants emphasize that even those social media communications configured by the user to be restricted to certain recipients can easily be shared widely by those recipients and become public. Accordingly, they argue that when any restricted communication is sent to a “large group” of friends or followers the communication should be deemed to be public and hence disclosable by the provider under the Act's lawful consent exception. On this point we reject defendants' broad view and instead agree with providers that restricted communications sent to numerous recipients cannot be deemed to be public - and do not fall within the lawful consent exception. Yet we disagree with providers' assertion that the Act affords them “discretion” to defy an otherwise proper criminal subpoena seeking public communications.

         In light of these determinations we conclude that the Court of Appeal was correct to the extent it found the subpoenas unenforceable under the Act with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted. But we conclude the court's determination was erroneous to the extent it held section 2702 also bars disclosure by providers of communications that were configured by the registered user to be public, and that remained so configured at the time the subpoenas were issued. As we construe section 2702(b)(3)'s lawful consent exception, a provider must disclose any such communication pursuant to a subpoena that is authorized under state law.

         Ultimately, whether any given communication sought by the subpoenas in this case falls within the lawful consent exception of section 2702(b)(3), and must be disclosed by a provider pursuant to a subpoena, cannot be resolved on this record. Because the parties have not until recently focused on the need to consider the configuration of communications or accounts, along with related issues concerning the reconfiguration or deletion history of the communications at issue, the record before us is incomplete in these respects. Accordingly, resolution of whether any communication sought by the defense subpoenas falls within the statute's lawful consent exception must await development of an adequate record on remand.

         We will direct the Court of Appeal to remand the matter to the trial court to permit the parties to appropriately further develop the record so that the trial court may reassess the propriety of the subpoenas under the Act in light of this court's legal conclusions.

         I. Facts and Lower Court Proceedings

         A. Grand Jury Proceedings and Indictment[2]

         According to testimony before the grand jury, at midday on June 24, 2013, Jaquan Rice, Jr., was killed and his girlfriend, B.K., a minor, was seriously injured in a drive-by shooting at a bus stop in the Bayview district of San Francisco. Various surveillance videos showed a vehicle and someone firing a handgun from the rear window on the driver's side. A second person was depicted leaving the vehicle from the rear passenger-side door and firing a gun with a large attached magazine.

         Witnesses identified defendant Derrick Hunter's 14-year-old brother, Quincy, as one of the shooters. During questioning in the early morning hours after the events, police homicide detectives told Quincy that they had “pulled all Instagram... [and] Facebook stuff, ” and were aware that he knew the shooting victim. Quincy related that the victim had “tagged” him on Instagram in a video featuring guns. The detectives responded that they had been “working all day” on the matter and had “seen those posts.” Quincy admitted that he shot the victim six times - and asserted that the victim “would have done the same thing to us.”[3]

         Quincy stated that “Nina, ” his girlfriend's sister, had provided the car in which he, his brother, and one other male had driven. Within a few minutes of the shooting, police had stopped Nina, whose real name is Renesha Lee (hereafter sometimes Renesha), while driving the vehicle shown in the videos.

         Renesha was codefendant Lee Sullivan's then girlfriend. She had rented the car used in the shooting and gave varying accounts of the events. According to her testimony before the grand jury, during the course of multiple interviews on the day and night of the killings, she initially “just made up names and stuff.” Eventually she told the police that defendant Derrick Hunter and his younger brother Quincy were among those who had borrowed her car. Renesha did not mention defendant Sullivan's name until a few days later, when she “told them the truth about [Sullivan], ” and that he had been involved along with the Hunter brothers.

         Renesha related that on the day of the shooting she had driven with Sullivan and the Hunter brothers to a parking lot where they “got out and walked to Quincy['s] house.” She explained that Sullivan told her the three young men were going to a store. Renesha recalled that she replied she would remain at the house and talk to her sister. She testified that Sullivan had not been wearing gloves when he and the others initially approached her to borrow the car, but she noticed that he was wearing gloves when they came out of Quincy's house and when they departed. According to Renesha, Sullivan drove away with the Hunter brothers in the backseat. She testified that when the three returned the car to her shortly thereafter it contained the phones of Sullivan and Derrick Hunter. She also testified that she had never seen Sullivan or either of the Hunter brothers with a gun.

         Renesha explained that she had initially not revealed Sullivan's involvement because she had been scared and “just didn't want to have no parts of it because I'm the one that still has to live and walk these streets.” She elaborated that once the police informed her that she might be arrested for murder, she “told them the truth, ” and yet still avoided implicating Sullivan until later in the process because she remained fearful of him. She maintained that after being threatened with prosecution she eventually told the full truth about Sullivan's role.

         In presenting the case to the grand jury, the prosecution contended that defendants and Quincy were members of Big Block, a criminal street gang, and that Rice was killed for two reasons: (1) Rice was a member of West Mob, a rival gang, and (2) Rice had publicly threatened defendant Derrick Hunter's younger brother Quincy on social media. Inspector Leonard Broberg, a gang expert and member of the San Francisco Police Department Gang Task Force, testified that in his opinion the alleged crimes were committed for the benefit of the Big Block gang. He explained that “gangsters are now in the 21st century, and they've taken on a new aspect of being gangbangers, and they do something they call cyber banging. [¶] They will actually be gangsters on the internet. They will issue challenges; they will show signs of disrespect, whether it's via images or whether it's via the written word.... [¶] [They use] Facebook, ... Instagram, Socialcam, Vine... [and] YouTube.... They will disrespect each other in cyberspace.” Inspector Broberg described a YouTube video made by victim Rice and shared by him via his Facebook account, in which he gave a tour of his West Point/ Middle Point neighborhood and identified specific places where he could be located - including the bus stop where he was shot. Broberg characterized the video as a challenge to others. In a subsequent declaration, Broberg explained that he “rel[ies] heavily on records from social media providers such as Facebook, Instagram, and Twitter to investigate and prosecute alleged gang members for gang crimes, ” and that in the present case, he “relied in part on” such records to secure evidence that Rice, Sullivan, and the Hunter brothers “were members of rival gangs and that the shootings were gang related.” The same declaration adds: “We [the police] have not sought search warrants as to Renesha Lee.”[4]

         Defendants were indicted and are presently charged with the murder of Rice and the attempted murder of B.K. They also face various gang and firearm enhancements. (Pen. Code, §§ 187, 664, 186.22, subd. (b)(1), 12022, subd. (a), 12022.53, subds. (d) & (e)(1).)

         B. Description of the Subpoenas

         Prior to trial, in late 2014, both defendants served subpoenas duces tecum (Pen. Code, § 1326, subd. (b)) on Twitter. Defendant Sullivan's subpoena sought “[a]ny and all public and private content” that had been “published by” Renesha Lee, who was identified by an attached photocopied screen shot of one of her Twitter accounts. The request specified no temporal boundary and stated that it “includes but is not limited to” (1) so-called record data, consisting of “user information [and] associated e-mail addresses, ” “activity logs, ” and “location data”; and (2) content information, such as “photographs, videos, private messages, ... posts, status updates, ..., and comments including information deleted by the account holder.” It further sought the identity and contact information concerning the custodian of records who could authenticate the requested materials. Defendant Hunter's subpoena, issued a few weeks later, sought all “accounts” and tweets originating from Renesha Lee's “account and in response to or linking her account” from the beginning of 2013 “to the present.” Neither defendant sought from Twitter any communication concerning victim Rice.

         Only defendant Sullivan served subpoenas on Facebook and Instagram. The Facebook subpoena requested information regarding the accounts of both Rice and Renesha Lee. The language of the subpoena tracked Sullivan's request to Twitter, broadly seeking “[a]ny and all public and private content, ” including deleted material, that had been “published by” either Rice or Renesha Lee, each of whom was identified by an attached photocopied screen shot of that person's Facebook account. As with Sullivan's subpoena served on Twitter, the subpoena specified no temporal boundary and sought the same record data, content, and authentication information mentioned above.

         Sullivan's subpoena served on Instagram similarly sought “[a]ny and all public and private content, ” including deleted material, published by Rice and Renesha Lee, each of whom was again identified by photocopied screen shots showing their account information.[5] In all relevant respects the demands for record, content, and authentication information tracked the demands directed to the other social media providers.

         C. Providers' Responses to the Subpoenas

         Counsel for Facebook and its subsidiary Instagram responded to the Sullivan subpoenas by a single letter in December 2014, asserting that as providers governed by federal statute (the SCA), they are precluded under that law from divulging the requested stored communications. The letter stated that under the SCA only the government may compel covered providers to divulge such stored content. Accordingly, the letter recommended that defense counsel instead seek the requested information directly from the account holder or from “any party to the communication” - persons who, unlike a covered provider, are “not bound by the SCA.” Alternatively, the letter suggested that defense counsel might “work[] with the prosecutor to obtain” the requested information via an additional search warrant issued by the government.[6] A few days later, different counsel in the same law firm responded similarly on behalf of Twitter to defendant Sullivan.

         Eventually all three providers moved to quash the subpoenas. They reiterated the assertions in their letters that defendants might try to obtain the requested information directly from the social media user who posted the communication, or from any recipient[7] - or perhaps via an additional search warrant issued by the prosecution.[8] They also objected that the requests as drafted were overbroad and vague. In any event, providers asserted, disclosure directly from them, as entities covered by the SCA, was barred by that federal law. In that respect providers' motions relied upon section 2702(a), which broadly states that a covered “person or entity” such as providers “shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” (Italics added.) Based on this language, providers asserted that the SCA's prohibition on a provider entity's ability to disclose any content information applies broadly and does not depend on whether the registered user configured a given communication as private/restricted as opposed to public. Moreover, providers asserted, none of section 2702(b)'s exceptions to the bar on disclosure by a provider applies here. Nor, they observed, does the Act contemplate procedures for criminal defendants to compel production of such communications.

         D. Defendants' Opposition to the Motions to Quash

         Defendants opposed the motions to quash, [9] but they did not contest providers' assertion that section 2702(a) prohibits providers from disclosing any of the sought communications - even those configured by the registered user to be public. Nor did defendants challenge providers' assertion that none of section 2702(b)'s exceptions apply in this case. Instead, defendants argued that their federal constitutional rights under the Fifth and Sixth Amendments to a fair trial, to present a complete defense, and to cross-examine witnesses support their subpoenas and render the SCA unconstitutional to the extent it purports to afford providers a basis to refuse to comply with their subpoenas. Defendants acknowledged that no court had ever so held, and asked the trial court to be the first in the nation to do so.

         Defendants presented offers of proof concerning the information sought from the various accounts. The prosecution had secured from Facebook and Instagram some of the available social media communications attributed to Rice and, as obligated, had shared that information with defendants in the course of discovery.[10] Regarding the information concerning Rice's communications, defendants asserted that review of the full range of content from those various accounts is required in order to “locate exculpatory evidence” and to confront and cross-examine Inspector Broberg, in order to challenge his assertion that the shooting was gang related. In support defendants cited Broberg's grand jury testimony and attached examples of five Facebook screen shots reflecting videos alleged to have been posted by Rice. Counsel asserted that the subpoenaed records would show that Rice was “a violent criminal who routinely posted rap videos and other posts threatening Quincy Hunter and other individuals.”

         Although the prosecution had secured and shared some of Rice's Facebook communications and a portion of the Instagram posts attributed to him, the prosecution had not sought from providers the social media communications of their key witness, Renesha Lee. Nevertheless, it appears from the record that at least one of Renesha Lee's Twitter accounts was public and contained numerous tweets that were accessible to defense counsel. Counsel evidently accessed that account and identified content that, they asserted, indicated a strong likelihood that other similar, yet undiscovered - and possibly deleted - communications might exist. Defendants alleged that the prosecution's case turns on Renesha Lee's credibility and that “she is the only witness who implicates Sullivan in the killing.”[11] Moreover, defendants explained, they sought additional corroborating information, consistent with that found already in Renesha Lee's public tweets, to demonstrate that she was motivated by jealous rage over Sullivan's involvement with other women and that she had repeatedly threatened others with violence.

         In support of these assertions defendants' opposition appended, as an exhibit, photocopied screen shots of what was represented as two of Renesha Lee's Twitter accounts. They quoted a September 2013 tweet showing a photograph of a hand holding a gun and making specific threats: “I got da. 30 wit dat extend clip….. BIIIITCH I WILL COME 2YA FRONT DOOR…..” Various other tweets from both accounts suggested a similar theme. Defendants asserted their need for and intention to use these and any other similar tweets, posts, comments, or messages, including deleted content, made by Renesha Lee on Twitter, Facebook, or Instagram, in order to impeach her anticipated testimony at trial. Defense counsel stated that, despite diligent efforts, Renesha Lee could not be located to be served with a subpoena duces tecum.

         E. The Hearing on the Motions to Quash

         The first session of the bifurcated hearing on the motions to quash was held in early January 2015. The trial court began by explaining that, in light of the pleadings, it was inclined to find the sought material “critical” to the defense against the pending charges, and to conclude that “defendants have a [constitutional] right to... information that's authentic... [and] reliable.” The court questioned providers' alternative proposal that the prosecution could or should issue additional search warrants to them (the service providers) on behalf of defendants: “First, I think the District Attorney's office is going to... say[], ... our job is not to perform your investigation for you. And, besides, the Penal Code... authorizes search warrants to be obtained [only] under certain circumstances, and... not to find evidence that might support an affirmative defense or mitigate a mental state [or impeach a witness].” The court also expressed concern about defendants' ability to obtain any tweets or posts that may have been deleted by the account holder, and regarding how those communications might be authenticated sufficiently to be allowed into evidence. In that respect, the court questioned whether Renesha Lee would be willing to “take ownership” of tweets attributed to her and quoted above, “[s]ome [of which] could be subjecting her to criminal liability.”

         The trial court next addressed Twitter's assertion that any “deleted contents” would “not [be] reasonably available” and hence providers would “not... be able to produce deleted contents or authenticate deleted content.” The court expressed skepticism concerning Twitter's assertion that it would be unable to produce deleted content, observing: “[W]hat I... know from my time in discovery [is] that when I delete e-mails, they are not all deleted. [¶] Now, I don't know... to what extent they are kept on some server or archive that could be retrieved through some sort of search function, or whether some forensic computer person has a way of reconstructing files or not. [¶] So... if you are going to say that you complied and... state under penalty of perjury [supported by a] showing... that you have done what you can do, that's a separate thing. But, I doubt very much I am going to change my position that this material is critical, it has to be produced, and you are the ones holding it.” Accordingly, the court tentatively denied the motions to quash and ordered that the materials be provided to it for in camera review pursuant to Penal Code section 1326. At the same time, the trial court allowed additional briefing to be filed before it ruled finally on the matter.

         In its subsequent brief Twitter reiterated its assertion that section 2702 of the SCA fails to “distinguish between ‘private' and ‘public' content for purposes of its restrictions on providers' disclosure” and it maintained that “service providers are prohibited from producing any content, regardless of status.” Facebook and Instagram asserted in their own subsequent brief that section 2702 of the SCA bars the requested discovery and that the Act “contains no exception for criminal defense subpoenas.” Consistent with their broad assertion that no exception applied under section 2702, they did not address whether any of the sought communications had been configured by the account holder to be public or private/restricted. Twitter, by contrast, directly confronted that issue in its own final supplemental responsive brief, noting that one of the accounts in question is public, and that “[a]s of this filing, anyone can visit the account and review its content, including messages, photos, and videos. In fact, defendant has already done this and included some public content from the account in... support of his Opposition [brief].”[12]

         In response, defendants contested the assertions by Facebook and Instagram that defendants could gain access to the sought communications by other means.[13] They argued that unless providers are ordered to comply with the subpoenas, they will be deprived of the information they need and also will be hampered in their effort to “persuade a jury that the records in question originated from Ms. Lee's social media accounts.”

         After considering the additional briefing, in late January 2015 the trial court confirmed its earlier conclusions, commenting that it would be “untenable” to deny the requested material to defendants. The court further explored with the parties the issues of deleted communications and burdens that compliance would impose on providers. In that regard counsel for providers asserted that deleted tweets “don't persist in backup for all eternity” and to the extent some remained in storage, “they are going to be very cumbersome and burdensome to obtain.” The court responded that it had insufficient information with which to weigh the benefit of production versus burdens, and noted that it could easily impose a temporal restriction on the information sought in order to render the request more reasonable and less burdensome. The court then asked counsel to address recovery of deleted content concerning “your other clients” - Facebook and Instagram. But that discussion never occurred, producing an evidentiary lacuna as to those providers. Thereafter, neither the parties nor the court addressed whether any of the sought tweets had been configured as public, or whether, for any time period, the user had protected the account and made tweets sent during that time accessible to followers only. Nor did the court or parties address the privacy configurations of the remaining Facebook and Instagram communications sought by defendants.

         F. The Trial Court's Ruling on the Motions to Quash

         The trial court finalized its tentative rulings, denying all three motions to quash and ordering that providers submit all of the sought materials for its in camera review by a deadline in late February 2015.[14] The court stated that it understood providers might seek writ review challenging its oral production order, and recognized that the Court of Appeal might stay its production order.

         After discussing the need for a preservation order (see post, fn. 47), the court vacated the trial date, which had been set for the next day. All parties agreed to reconvene in early March, after the trial court had an opportunity to conduct in camera review of the information that the providers had been ordered to produce, or alternatively at a later date pending resolution of the writ proceeding providers intended to file contesting the court's oral production order.

         G. The Writ of Mandate Proceeding

         Providers jointly filed a petition for a writ of mandate in the Court of Appeal contending that the trial court abused its discretion in denying the motions to quash. They asked the appellate court to “preserve the status quo” by issuing an immediate stay of the trial court's production order and planned in camera review. That court stayed the trial court's production order and issued an order to show cause asking why the relief sought in the petition should not be granted.

         After full briefing and oral argument, the Court of Appeal filed an opinion concluding that the SCA barred enforcement of defendants' pretrial subpoenas and rejecting defendants' arguments that the Act violated their rights under the Fifth and Sixth Amendments to the federal Constitution. Reviewing the relevant case law with respect to the constitutional claims, the appellate court concluded: “The consistent and clear teaching of both United States Supreme Court and California Supreme Court jurisprudence is that a criminal defendant's right to pretrial discovery is limited, and lacks any solid constitutional foundation.” (Italics in original.) The appellate court stressed, however, that its conclusion was confined to “this stage of the proceedings” and limited to the “pretrial context in which the trial court's order was made.” (Italics in original.) It observed that defendants would remain free to seek “at trial the production of the materials sought here.” The appellate court commented that the trial judge who would eventually conduct the trial “would be far better equipped” than the appellate court itself “to balance [defendants'] need for effective cross-examination and the policies the SCA is intended to serve, ” and suggested that the SCA might eventually need to be declared unconstitutional to the extent it precludes enforcement of such a trial subpoena issued by the trial court itself, or by defendants, with production to the court. With respect to the pretrial context, however, the appellate court directed the trial court to vacate its order denying providers' motions to quash the pretrial subpoenas, and to grant the motions to quash.

         II. Proper Interpretation of the Stored Communications Act

         Because the parties agreed in the trial court that the SCA precluded providers from complying with defendants' subpoenas and the court accepted that proposition, the trial court proceeded on the assumption that providers' refusal to comply with the subpoenas raised only constitutional questions. It then decided the matter by resolving those constitutional issues in defendants' favor. As explained above, the Court of Appeal likewise viewed the case as raising only constitutional issues, and its decision in providers' favor was grounded on the appellate court's conclusion that defendants' constitutional claims were not viable in the pretrial context.

         In their initial briefing in this court, the parties again proceeded on the assumption that the litigation raised only constitutional issues, and they debated the merits of defendants' constitutional contentions. Defendants reiterated the view that their federal constitutional right to due process under the Fifth Amendment, and their confrontation, compulsory process, and effective assistance of counsel rights under the Sixth Amendment, require that the Act be declared unconstitutional to the extent it precludes the enforcement of their subpoenas in this case. They candidly recognized that case authority supporting their position is sparse. Ultimately, they suggested that we should overrule or distinguish our own decisions (especially People v. Hammon (1997) 15 Cal.4th 1117 and its progeny) in order to declare the SCA unconstitutional as applied and uphold their pretrial subpoenas. Providers, by contrast, asserted that no decision of any court supplies authority supporting defendants' entitlement to pretrial enforcement of their subpoenas. They argued that, to the extent defendants might later at trial be able to establish a due process right to the information they seek in order to secure a fair trial, their remedy at trial would not lie in a judicial declaration that the SCA is unconstitutional as applied to them. Instead, providers asserted, the trial court should at that time put the prosecution to a choice: (1) use its authority under the Act to acquire the sought materials on behalf of defendants and share them with defendants at trial, or (2) suffer consequences in the form of an adverse evidentiary ruling at trial, including potentially pivotal instructions to the jury, or outright dismissal of the prosecution's case.

         As mentioned, our initial review of the SCA and the relevant legislative history of the pertinent provisions, as well as prior judicial decisions addressing related issues, led us to question the validity of the statutory interpretation of the SCA on which the case was litigated below. Specifically, we questioned whether the relevant statute, section 2702(a), which appears to bar providers from disclosing electronic communications configured by the user to be private or restricted, also bars providers from disclosing communications that had been configured by the user to be public. Accordingly, we requested supplemental briefing directed to that issue, identifying the portions of the legislative history that appeared most relevant.

         As explicated post, part III.A., in the ensuing supplemental briefing all parties concede that section 2702(b)(3)'s lawful consent exception permits providers to disclose public communications. In order to understand the relevant provisions of the SCA and why we also conclude that the statute should be so construed, it is appropriate to review the Act's general history, the language of the relevant statutory provisions, the specific legislative history of those provisions, and prior relevant case law.

         A. The SCA - History and ...


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