No Facebook Data, Tweets for Accused Murderers

By Tera Brostoff

Sept. 11 — Two alleged murderers awaiting trial won't be able to access the social media information of the victim and a witness after the California Court of Appeal Sept. 8 quashed subpoenas on Facebook Inc., Instagram LLC and Twitter Inc.

Associate Justice Terence L. Bruiniers granted a petition for writ of mandate and/or prohibition filed by the social media companies to quash several subpoenas seeking subscriber information. The court explained that the Stored Communications Act—which prohibits the disclosure of subscriber information barring certain exceptions—doesn't provide a direct mechanism for access by a criminal defendant to the content of private communications.

Defendants Derrick Hunter and Lee Sullivan didn't persuade the court that their constitutional rights to present a complete defense, cross-examine witnesses and a fair trial trumped the privacy rights of account holders under the SCA.

Defendants Seek Social Media Content 

Hunter and Sullivan were indicted on murder and gang-related charges in conjunction with a drive-by shooting. They served subpoenas on Facebook, Instagram and Twitter, seeking public and private content from the user accounts of murder victim Jaquan Rice Jr., and a witness, Sullivan's ex-girlfriend.

The defendants argued the information was necessary to their defense and ability to cross-examine witnesses. Sullivan argued that his ex-girlfriend was the only witness who implicated him in the shootings and that her social media records would show a motivation fueled by jealous rage. The companies move to quash.

The trial court initially denied the social media companies' motions to quash and ordered them to produce responsive material. The companies then petitioned for writ of mandate in the appellate court, arguing that the trial court abused its discretion.

Subpoenas Quashed 

In the criminal context, the SCA allows for the disclosure of content to a governmental agency or entity only pursuant to a warrant or by an administrative subpoena or a court order. But the SCA doesn't allow criminal defendants to access that same information, the court said.

Hunter and Sullivan argued that the subpoenaed materials are necessary to ensure their right to present a complete defense. But the court disagreed, noting the Sixth Amendment right to confrontation and cross-examination doesn't guarantee pretrial access to otherwise privileged or confidential information.

The court also rejected the defendants' argument that the failure to provide the pretrial discovery would deny them their due process rights to meaningfully prepare a defense.

In addition, Hunter and Sullivan aren't precluded from access to much of the information, according to the court. The prosecution has already obtained some of the victim's social media communications, and the defendants are entitled to receive copies as either general criminal discovery or as potentially exculpatory Brady material, the court said.

The court granted the petition and ordered the trial court to vacate the order denying the motion to quash.

Presiding Justice Barbara J.R. Jones and Associate Justice Sandra L. Margulies concurred with the opinion.

Perkins Coie LLP represented Facebook. Jose Umali in San Francisco represented Hunter. Susan Kaplan and Janelle E. Caywood in San Francisco represented Sullivan.

To contact the reporter on this story: Tera Brostoff in Washington at tbrostoff@bna.com

To contact the editor responsible for this story: Carol Eoannou at ceoannou@bna.com

Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/Facebook_Inc_v_Superior_Court_of_SF_City__Cty_No_A144315_2015_BL_.