Juror will appeal order to turn over Facebook posts

California juror required to divulge contents of Facebook account plans appeal of court order, which tests the limit of fair trial and privacy rights in era of social media.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read

A California attorney representing a juror required to divulge the contents of his Facebook account says he will file an appeal of the court order tomorrow.

Ken Rosenfeld, a Sacramento criminal defense attorney, told CNET that forcing jurors to turn over private correspondence in the form of Facebook posts "would be catastrophic in terms of free speech, justice, and the jury system itself."

The dispute arose in the trial of alleged members of the so-called Killa Mobb gang, who were convicted of performing a vicious beating in 2008. Soon after the verdicts, one juror alleged misconduct by another juror, Arturo Ramirez, who had mentioned the case on Facebook.

Ramirez' comments appear to have been innocuous, wondering during the prosecutors' case "can it get any more BORING" than perusing cell phone records.

But they were enough for defense attorneys to send a subpoena to Facebook asking for the full records of Ramirez' account--a move that Facebook argued would violate the Stored Communications Act and the Electronic Communications Privacy Act, which generally limit the ability of Web companies to divulge the contents of communications.

On Friday, Judge Michael Kenny signed an order that attempted to do an end run around those federal privacy laws. It gave Ramirez 10 days to "execute a consent form" that would allow "Facebook to supply the postings" in question, upon penalty of being held in contempt of court.

"It is clear that the law was not intended to allow a juror to violate the court's admonition to keep silent about a case and then claim that the act made the very postings that violated the admonition private and unreachable," Kenny wrote in his order.

Rosenfeld, who's representing the juror, says this goes too far. "Ordering consent or compelling (a juror) to sign a consent form is far beyond the court's powers," he said. "We're appealing the order to the appellate court and the California Supreme Court if necessary."

Unless one party or another backs down, the case could end up testing the limits of a defendant's constitutional right to a fair trial "by an impartial jury" in an environment where Facebook posts and Twitter updates are commonplace.

This is hardly the first time the topic has arisen. Last October, Florida banned jurors from tweeting and blogging.

An Ohio man convicted of drunk driving unsuccessfully tried to get a new trial after a juror blogged about the case. A New Hampshire juror was caught calling criminal defendants "riff-raff."

One judge removed a juror after she reportedly posted on Facebook: "Gonna be fun to tell the defendant they're guilty." And a Georgia federal judge banned even spectators from sending live updates through Twitter from the courtroom.