Closing The Loop

The cops are on Facebook. They’re posting from their own department accounts, scrolling public feeds, sending friend requests from fictitious profiles, and getting warrants for photos and other personal data. But when it comes to discovery of social media evidence, where do those on the other side stand?

A recent decision from the California Supreme Court clarifies access to social media evidence by criminal defendants, and, in doing so, raises important issues for attorneys and social media companies when it comes to requesting, preserving, and producing posts and other account data.

 

Facebook Fights Social Media Subpoena

In May, the California Supreme Court ruled on the case of Derrick Hunter and Lee Sullivan, two men indicted on murder, weapons, and other charges in relation to a 2013 drive-by shooting in San Francisco. The pair subpoenaed Facebook, Instagram, and Twitter, seeking posts and messages from the homicide victim and a witness. More specifically, they were looking for private posts from Sullivan’s ex to undermine her credibility as a prosecution witness.

The social media companies moved to quash the subpoena, arguing that the Stored Communications Act (SCA) barred them from providing the communications Hunter and Sullivan sought. Section 2702(a) of the SCA, which states that providers “shall not knowingly divulge to any person or entity the contents of” any “communication” that is stored or maintained by that provider, prevented them from disclosing any communications, the companies argued. According to Facebook et al., that prohibition applies whether or not the information was shared publicly on their platforms.

 

The Public/Private Distinction in Social Media Discovery Under the SCA

California’s Supreme Court took a significantly less restrictive view of the SCA. A unanimous court ruled that social media companies must comply with subpoenas for public posts on their respective platforms, but the opinion is far less definitive when it comes to private posts and communications.

When it comes to public posts, the court held, the “lawful consent exception allows providers to disclose communications configured by the user to be public.” In other words, because the user is sharing the communication with the public, they have implicitly consented to the social media companies’ disclosure of the same communication.

“[C]ommunications configured by a social media user to be public fall within section 2702(b)(3)’s lawful consent exception, presumptively permitting disclosure by a provider.” -Facebook v. Superior Court (Hunter)

On the other hand, when considering restricted posts—those marked private or only sent to a discrete set of users—the court was less permissive. Even if the intended recipients were a large group of people, the SCA’s “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 found.

 

Unanswered Questions and a Potential Surge of Social Media Subpoenas

To which social media posts, exactly, Hunter and Sullivan would have access following the decision remains unclear. Because both sides briefed the case without knowing of the court’s public post/restricted post distinction, neither listed which communications fell under each distinction.

The court also declined to address deleted posts: whether the deletion revoked the user’s lawful consent; how the timing of the deletion in relation to service providers’ receipt of a subpoena would factor in; and whether searching for and producing deleted communications would be too burdensome for the social media companies. The case was remanded to the Court of Appeal to build an evidentiary record and sort out all of those issues.

Still, the ruling is a wake-up call to social media companies, who now know that, at the very least, they may have to provide public posts to criminal defendants and their attorneys. Riana Pfefferkorn, a fellow at Stanford Law School’s Center for Internet and Society, told The Recorder that the decision is “a win for users, because it correctly reads the SCA as being protective of their privacy.” But at the same time it may require social media providers to do a lot more work storing and producing public posts. “Providers are now on notice that they’re presumably going to get a lot more of these types of subpoenas,” Pfefferkorn said, “and that’s going to be potentially irksome for providers.”

 

From Photos and Posts to “Stories” and Live Streaming

Defense attorneys especially will need to keep an eye on this case to see how the Court of Appeal distinguishes public and private posts and whether changes to a post’s audience (like restricting or deleting a post after it was public) affect access to the post itself. And what courts decide to do with simple posts on social media, like photos and status updates, may be a harbinger of how they’ll deal with newer, more complicated features like live-streaming, non-permanent “stories,” and location sharing.

What courts decide to do with simple posts on social media, like photos and status updates, may be a harbinger of how they’ll deal with newer, more complicated features.

If a Facebook user live-streams a crime, for instance, what is the platform’s responsibility in storing that video for later use by law enforcement or lawyers? Both Instagram and Facebook offer a “Stories” function allowing users to post photos outside of their normal feed that disappear after 24 hours.

Are these “configured to be public” according to the California Supreme Court’s analysis? Are they only public for that time period, and then private afterwards? And if a user shares their location publicly, is that location data later subject to warrants and subpoenas?

 

A Growing Universe of Social Media Evidence

Social media evidence is playing a critical role in more and more cases, both civil and criminal. Not only do attorneys need to keep up on the latest social media platforms, but they need to be familiar the discrete services they provide in order to know what data might be available. And it helps to be familiar with the devices carrying social media apps and tracking and logging that data. Your clients might not just be on their desktops or their phones: wearable technologies, embedded in clothing, jewelry, shoes, or other apparel can transmit or receive data through wireless technology.

“Users frequently use social media to communicate information found on their wearable technologies,” according to the recent Primer on Social Media from The Sedona Conference and the “data that wearable technologies generate often relates to the users of these technologies.” A user’s watch, for instance, may be gathering data like heart rate, blood pressure, and sleep cycles, alongside geolocation information. And knowing that info exists, and where, are the first steps to acquiring it: 

Attempts to discover such data, whether communicated through social media sites or maintained on wearable technology, will encounter issues similar to those posed by platforms and messaging applications. They include preservation and collection; relevance and proportionality; possession, custody, and control; and the SCA.

 

The Evidentiary Command: Getting Access to Social Media Data

For those looking to access such data, your first stop should generally be the source. Before you go knocking on Facebook’s front door with a subpoena, request social media posts from the user(s) who posted them in the first place. Later attempts to force social media platforms to hand over user data will be more convincing if the user has been unresponsive or declined to provide the relevant evidence themselves.

And avoid fishing expeditions. Bear in mind the twin principles of relevance and proportionality. “Courts generally reject efforts to obtain ‘all’ social media postings or ‘entire’ account data,” notes the Primer. “This is because the entire contents of a social media source are not likely to be relevant in most cases, just as all of a party’s emails are not likely to be relevant.”

Or, as Erica Wilson, an attorney at Vuono and Gray, explains in "How to Conduct eDiscovery at Your Law Firm," it pays to be “aggressively reasonable.”

“If you end up having to move to compel something, it’s a lot easier to justify a demand for a six-month period than to explain why you didn’t really mean a party should produce its old Telex records,” she explains.

Finally, be aware that in-court squabbles over access to social media evidence can take time, during which that evidence can be lost. Consider preservation subpoenas that can require social media providers to preserve the battled-over evidence in the meantime.

As courts continue to shoehorn new technology into old statutes and rules of procedure, attorneys can’t afford to lag behind the judicial times. The cops are on social media, and your clients are, too. Make sure you know how to get the information and evidence you need out of social media platforms—and how to quickly process, sort, and review that data once you have it.

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