July 12, 2012
Last September, I wrote a few posts on the Stored Communications Act (SCA), with one in particular discussing its role in civil discovery.
That post focused specifically on civil discovery of social media posts, such as those on Facebook and Twitter.
The post referenced above has much more detail about the SCA, but, in short, the Act deals with the voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” retained by third-party internet service providers (ISPs).
Specifically, it prohibits ISPs from divulging the contents of electronic communications carried, stored, or maintained by the service.
In the post, I stated that, under current law, a court cannot issue a subpoena to any social media sites for the release of communications relating to a third-party (i.e. one of its users).
Unfortunately, a recent court ruling all but torpedoed this premise.
The California case, Juror Number One v. Superior Court, dealt with a juror who allegedly made several Facebook posts about the trial while the proceedings were still ongoing.
The court then ordered Facebook to “release any and all information, including postings and comments for Facebook member [Juror Number One].”
If the court had read my post from September, it would have known that the SCA doesn’t allow for this.
Facebook, of course, knew this, and, citing the SCA, moved successfully to quash the subpoena.
The social media giant was kind enough to give the court a suggestion though: get the information from Juror Number One himself, since “he owns and has access to his own Facebook account, and can disclose his Facebook postings without limitation.”
Hot Doc: Juror No. One v. Superior Court
Predictably, Juror Number One had already deleted the posts in question, so he no longer had access to what the court wanted.
The court really wanted those posts, though, and wasn’t about to let a trivial thing like the law stand in its way.
So, the court got the bright idea to exploit an exception in the SCA that allows the service provider (Facebook, in this case) to disclose any and all records it has as long as it has obtained the “lawful consent of the customer.”
Juror Number One wasn’t about to voluntarily give his consent to Facebook, so, naturally, the court had to order him to consent.
Considering, though, that forced consent isn’t technically consent at all, the court didn’t want to rest its reasoning solely on the SCA.
Instead, it cited two authorities:
The first was Rule 34 of the Federal Rules of Civil Procedure, which allows for the discovery of electronically-stored information within a party’s “control.”
The second was the 2008 U.S. District Court case Flagg v. City of Detroit, which held that text messages held by a service provider contracted with the city of Detroit to provide specialized text messaging services were within the city’s “control.”
The result was a finding that Juror Number One was in “control” of the records held by Facebook simply because he could access them through giving his consent to Facebook to release them.
I could go into how and why Flagg is not analogous to Juror Number One, but it would really warrant a separate post entirely.
Moreover, it would be beside the point, since the court would have reached the same result regardless – it may have just taken a different route.
Still, this is a disturbing development.
After all, the logic used in Juror Number One can be applied to bypass the SCA’s limitations on what electronic information the government can obtain in virtually every conceivable circumstance.