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Case in Point

How Social Media Giants Side With Prosecutors in Criminal Cases

Why can’t the defense have access, too?

You probably would not be surprised to learn that Facebook, Twitter, Instagram and other social media companies readily hand over their customers’ online content to cops and prosecutors who come armed with a court order or search warrant. But you may be surprised to learn that lawyers for those same social media giants say a federal law forbids them from sharing similar information with defense attorneys looking to help their clients.

The conflict is coming to a head in a California case that will test whether the law — the Stored Communications Act — conflicts with the constitutional rights of criminal defendants. The law, which was passed in 1986, bars companies from “knowingly” sharing information with anyone but the sender and the intended recipient.

The California Supreme Court is poised to hear arguments that come down to defining “privacy” on social media, a platform that was never considered by the authors of the federal law and is by its very nature public. Companies argue that defense attorneys should get the information from the government, which can obtain a court order to secure it, or better yet, from the people whose accounts they want to mine. Defense attorneys argue that no one should have to jump through those sorts of hoops to get a fair trial.

The case began with a murder. On June 24, 2013, Jaquan Rice was killed in a drive-by shooting at a bus stop in San Francisco. Prosecutors theorized the shooting was gang-related. A 14-year-old boy confessed to the crime, telling police he shot Rice, 19, because he believed Rice would have killed him first if he had a chance. The boy said Rice had tagged him in violent posts on Facebook and Instagram.

The teen implicated his other brother, Derrick Hunter, in the murder, saying he also had been in the car as it rolled up to the bus stop. Another man, Lee Sullivan, also was implicated. His ex-girlfriend, Reneesha Lee, had rented the car and was found by police driving in it, alone, a few minutes after the shooting. She told cops that Sullivan was involved. Defense attorneys said she did this only after she was threatened with prosecution for whatever role she may have played in the crime.

The boy was eventually convicted in juvenile court. As the case against the two adult defendants moved toward trial in December 2014, defense lawyers subpoenaed Facebook, Twitter and Instagram, which is owned by Facebook, to get records from the social media accounts of Rice, the victim, and Lee, the witness. The strategic reason for doing this is obvious: if Rice or Lee had threatened anyone online, defense attorneys surely would want jurors to know.

The tactical reasons for the subpoenas also are clear. Rice was dead and could not consent to a search of his online accounts. Lee had fled to parts unknown; she could not be found either by defense attorneys or prosecutors. Before she left, however, she was called as a witness in the juvenile’s murder proceeding and invoked her Fifth Amendment right against self-incrimination. If the defense attorneys for Sullivan and Derrick Hunter were going to get access to these records, it was going to have to come from the companies or prosecutors, who say it’s not their job to help the defense get its evidence.

The companies were unmoved by the fact that Rice and Lee could not or would not consent to the release of their online profiles. Lawyers for the companies immediately moved to quash the subpoenas, saying that the Stored Communications Act allows the disclosure of private social media information only under a warrant or court order, both of which require a judicial finding of probable cause. A month later, in January 2015, the trial judge dismissed the companies’ motion, ruling that the defendants had a constitutional right to the social media records before trial and ordered the companies to provide them. The judge planned to review them privately.

The companies quickly appealed. In September 2015, the appeals court issued its ruling: even if the defendants’ fair trial rights trumped the Stored Communications Act, those rights didn’t kick in at the pretrial stage of the case. They would have to wait until trial.

That result didn’t satisfy either side. Now, the case is before the California Supreme Court waiting for oral argument. There are two central issues for the justices to consider. The first is whether the act, as applied in this case, is unconstitutional because it undermines the ability of the defendants to put on their case. The second is whether the law itself, outdated almost from the moment it was enacted, even contemplated a scenario where social media posts are considered “private” communications.

The prosecutors have stayed out of this fight, which is rare in battles over pretrial discovery in criminal cases. Perhaps they don’t need the social media records the defendants are requesting. No doubt they chafe at one of the arguments made by the companies, that prosecutors should serve as agents for defense attorneys by obtaining social media records that defense investigators cannot otherwise obtain. In an adversarial trial system prosecutors don’t want to do that any more than defense attorneys want prosecutors to do their pretrial investigative work for them.

A lawyer for Facebook told me he could not comment on the pending case and directed me to Facebook, which did not respond to my request for comment. Janelle Caywood, who is representing Sullivan in the case, told me last week that Silicon Valley is relying on a cramped interpretation of the Communications Act that puts her clients and others in an impossible position: Defense lawyers have no right to ask prosecutors or cops to obtain a search warrant in order to hunt down evidence favorable to their clients, she said. But even if they did, they would have to tell prosecutors what they were looking for — which would violate attorney-client privilege.

Depending on what those social media accounts show, the high court’s decision could mean the difference between a conviction and an acquittal or hung jury for the defendants. But there are broader implications in the case that have drawn the attention of outside groups. The folks at the Electronic Frontier Foundation, a non-profit digital rights group, intervened in a 2013 case with similar facts. That case was resolved before it was fully litigated. In that instance, the EFF argued that any requests for online information should be made to the user and not to third parties such as Facebook (a scenario, as we’ve seen, that would not work in the case of Rice and Lee).

The tech companies, meanwhile, continue to rely on a federal statute that was enacted when Mark Zuckerberg was 2 years old and the notion of Facebook, Twitter and Instagram weren’t even twinkles in the eyes of today’s social media giants. Are the posts of Rice and Lee, the ones the defense attorneys want access to today, really “private” if they once were shared, as they presumably were, with the friends (and friends of friends) of Rice and Lee? If nothing else, the corporate argument here makes the strongest case for amending and updating the Stored Communications Act to fit the more modern world.