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Criminal defendants could get access to Facebook user content, court rules

The California Supreme Court kicks the case back to trial court to determine whether info was public when it was subpoenaed.

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Facebook and other social-media companies should provide user content that's already public to criminal defendants in response to subpoenas, the California Supreme Court unanimously ruled Thursday.

The high court rejected an appellate court's ruling that providers were prohibited from disclosing communications configured by the user to be public and that remained public at the time defendants subpoenaed the information. The ruling, which returned the case to the trial court, could ultimately allow defense attorneys in criminal cases to extract user content from social media companies.

"A provider must disclose any such communication pursuant to a subpoena that is authorized under state law," Chief Justice Tani Cantil-Sakauye wrote in the court's opinion (PDF).

The case centers on a pair of San Francisco murder defendants who want access to videos and other content posted to Facebook and Instagram by the victim and a witness. They also sought information from Twitter.

The defendants, Lee Sullivan and Derrick Hunter, were charged with murder in connection with the 2013 drive-by shooting death of a 19-year-old man. They sought the social-media posts by Sullivan's former girlfriend -- a prosecution witness in the case -- to demonstrate that her testimony was motivated by jealous rage over his involvement with other women.   

The social-media companies resisted, arguing that federal privacy laws prohibited them from releasing any user content. The defendants countered that their constitutional right to a fair trial entitled them to the social-media records to present a complete defense.

Defendants also argued that their right to a fair trial outweighed the Stored Communications Act, a 1986 law that bars disclosure of stored electronic communications held by third-party providers without consent.

Google said in an amicus brief filed in the case that posts intended by the sender to be viewed by a specific friend or group of friends seek to preserve a degree of privacy, which prohibits a service provider from disclosing such communications.

The court agreed, rejecting defendants' "unsupported and rather startling assertion" that social-media posts were exempt from the Act's prohibition against disclosure by providers to "any person or entity." It also said defendants' interpretation of the Act's lawful-consent exception was broader than that envisioned by Congress when it enacted the law.

"The legislative history suggests that Congress intended to exclude from the scope of the lawful consent exception communications configured by the user to be accessible to only specified recipients," the court said in its opinion. "There is no indication in the legislative history of any intent to do otherwise in the case of communications sent by a user to a large number of recipients who, even in 1986 when the Act was adopted, could have shared such communications with others who were not intended by the original poster to be the recipients."

The court sent the case back to the trial court to determine whether the information requested by the defendants was open to the public and therefore shared with the defendants.

"Whether any given communication sought by the subpoenas in this case falls within the lawful consent exception ... and must be disclosed by a provider pursuant to a subpoena cannot be resolved on this record," the ruling said..

Facebook applauded the decision as a victory for online privacy.

"We're pleased with the Court's decision to uphold the important privacy protections in the Stored Communications Act," a Facebook spokesman said. "The Court's opinion shows that Facebook and other companies acted properly in refusing to disclose people's private content in response to subpoenas from criminal defendants. We will continue to advocate for people's privacy."

Twitter declined to comment.

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