social media in the world of criminal trial # ... education/annual... · social media is a key...
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SOCIAL MEDIA IN THE WORLD OF CRIMINAL TRIAL #GETITINORKEEPITOUT
OVERVIEW
https://techcrunch.com/2017/06/27/facebook-2-billion-users/
Types
Blogs
Blogger
WordPress
Micro-Blogs
Professional Networking sites
Platforms
Linkedin Photo Sharing Services
SnapChat
Social Networking Services
MySpace
Video Sharing Services
You Tube
Vimeo
Adult Sites
Dark Fetish
Dating sites
Wikis
And more and more each day
Social Media Expansion
Daily Use
Mobile Data Expansion
W hy Use Social Media at Trial?
Part of State’s discovery
Identify potential witnesses/leads
Obtain statements or photographs to corroborate existing information
Gather potential exculpatory evidence
Research social networks (“friends of friends”)
Use as a means to communicate with known correspondents
Social Media is a key component to profiling the subject of an investigation. The pool of information forms a distinctive “Social Signature” but there are limitations on the information you can access on a social network due to privacy settings and anonymity.
Social Media sites like Facebook will provide subscriber information when compelled by a subpoena but because these sites do not verify any registration information, subscriber submitted background data (e.g. name, address and DOB) can be fictitious creating dead-ends for investigators attempting to identify the social media site subscriber.
“Social Media Signatures” develop as users become more deeply involved in online activity. Investigators can use patterns to identify Signatures and Signatures to identify real people.
Considerations
Hardware
Type of content we seek
Whether the social media evidence is related to the crime or goes to an element of the crime
Hardware Examples
Desk top
Lap top
Tablet
Game Consoles
Smart Phones
Smart Watch
Smart Glasses
Virtual reality
Heads Up Display (HUD)
In each of the first six devices, social media data relevant to an investigation may reside on the device, within the user’s account or on the provider’s servers. The remaining are there to illustrate that we are becoming integrated with the web. Google Glass is a computer with 8G of storage worn like a pair of eyeglasses. HUD is a contact lens capable of delivering information directly to your retina. It’s like Google glasses that sit on your eyeball. Suppose a homicide victim is wearing HUD at the time of death. Will a forensic examination of the lens shed light on the crime? Content vs. Non-content Information Content – information posted by the user
Profiles
Lists of friends
Group memberships
Messages
Chat logs
Wall posts
Status updates
Tweets
Photos
Videos
Audio files
Tags
GPS locations
Likes
Check-ins Login timetables
Non-content – information that identifies the user
Subscriber ID
IP addresses
Emails, telephone numbers and names associated with accounts
Evidence vs. Crimes
Cyber Bullying / Stalking / Harassment
Gang recruitment and communications
Parole/Probation Violations
Hacking offenses
Financial Crimes / Identity Theft
Human Trafficking
Luring
Child Exploitation
FOURTH AMENDMENT RIGHT TO PRIVACY
Reasonable Expectation of Privacy
Established as we know it today in United States v. Katz, 389 U.S. 347 (1967) Requires:
› A subjective expectation of privacy; and
› Societal recognition that the expectation is reasonable
Under the third party doctrine, individuals who retain a reasonable expectation of privacy may lose protection when they relinquish control of private information to third parties
Third Party Doctrine and Electronic Communications
Whether the Fourth Amendment precludes the government from viewing a social networking user’s profile absent a showing of probable cause may depend on privacy settings
Settings project the user’s intent and expectation of privacy
Friends are free to use your information however they want, including by sharing with the government
May change as privacy settings parameters expand and evolve
No reasonable expectation that your friends won’t share your post
› “[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose." - United States v. Miller, 425 U.S. 435, 443 (1976).
› Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (stating that sender of email “would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation of privacy ordinarily terminates upon
delivery’ of the letter”)
› United States v. Meriwether, 917 F.2d 955, 959 (6th Cir. 1990) (defendant had no reasonable expectation of privacy in message sent to a pager)
› United States v. Charbonneau, 979 F. Supp. 1177, 1184 (S.D. Ohio 1997) (stating that a sender of an email “cannot be afforded a reasonable expectation of privacy once that message is received”)
THE STORED COMMUNICATIONS ACT
The Act The Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701– 2712) is a law that addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (ISPs).
The Stored Communication Act: Advantage Government Federal law provides that in some circumstances, the government may compel social media companies to produce social media evidence without a warrant. The SCA governs the ability of governmental entities to compel service providers, such as Twitter and Facebook, to produce content (e.g., posts and tweets) and non-content customer records (e.g., name and address) in certain circumstances.42 Passed in 1986, the SCA has not been amended to reflect society’s heavy use of new technologies and electronic services, such as social media, which have evolved since the SCA’s original enactment. Consequently, courts will continue to play a critical role in defining how and whether the SCA applies to the varying features of different social media services by applying precedent from older technologies, such as text messaging pager services or electronic bulletin boards.
The SCA:
Passed in 1986 and has not been amended since
Limits the ability of Internet Service Providers to voluntarily disclose information about their customers and subscribers
Requires consent of the customer
Provides no exception for a subpoena
Provides that, in some instances, the government may compel social media companies to produce social media evidence without a warrant
Governs the ability of governmental entities to compel service providers to produce content (e.g., posts and tweets) and non-content customer records (e.g., name and address) in certain circumstances
Does not apply equally to the government and the defense
Accessing Non-Content Storage
Non-content records can be compelled without a warrant or court order
Must have a warrant for communications content less than 180-days old
Older than 180 days
› Obtain a warrant
› Subpoena
› Obtain a court order
Does not prohibit disclosure of information forms not contemplated by the statute
› Images and Photos
› Audio and Voice
› Video
› Links
› Metadata, e.g. IP Logs
Defense Access
Defendants face more significant obstacles than the government when seeking exculpatory evidence from social media companies because they do not share the government’s freedom to sleuth for publicly available social media evidence
To increase chances of successful discovery of information, avoid fishing expeditions; courts and providers are much more likely to honor (or at least work through) narrow requests
Subpoenas and court orders
Defendants may seek to subpoena social media companies for user information regarding the victim, the complaining witness, or another witness
Court may find that the evidence maintained by a social media website is “private,” in which case the SCA prohibits a non-governmental entity, such as Facebook, from disclosing that information without the consent of the owner of the account or a court order
Novel approaches – attempt novel methods of obtaining exculpatory social media evidence
Under Brady or Giglio, one may obtain a law enforcement officer’s social media account records; argue they are in possession of law enforcement
Ask court to order the customer to execute an authorization for the release of social media content
Ask court to order government to get the witness’ social media information
Courts may order witnesses or third parties to produce or manipulate their social media information in unique and unprecedented ways; e.g. preserve for government, provide login information to court
Criticisms of the Stored Communications Act
Created in response to Internet Service Provider-based communications
Increasingly difficult to apply to advancing technology
Creates the need for the courts to address matters on a case-by-case basis, often analogizing to out-of-date modes of communication
Unfair to persons accused of crimes
Did not contemplate the pervasiveness of social media
Created before smart phones
Does not account for customer’s decreasing ability to control information privacy; many social media sites default to public settings
ETHICAL CONSIDERATIONS
Pretexting
Using depictive tactics or impersonation to gain access to information that would otherwise be unavailable to the public
Deployed when subject is unable or unwilling to participate in the investigation
Illegal in some states
Unethical in all states
Advising Clients
Do remind clients that their social media pages may be accessed by law enforcement
Do not instruct clients to destroy/delete social media evidence
Always consult a supervisor if you are concerned or unsure
Check Yourself
Never use social media to discuss you case or your clients
Never give legal advice via social media
Know your internal ethics policies regarding social media accounts
Know your internal ethics policies on “friending” clients, prosecutors and court staff
GETTING SOCIAL MEDIA INFORMATION
Getting It…the Easy Way
Internet search for any social networking groups/sites on which witness has a profile
If public, get whatever you can while it lasts
If private, seek friends of friends through investigation and gather as much public information as possible
Take an investigator and ask the person who posted for access
Getting It…the Hard Way
Motion to preserve
Court order for preservation
› Flagg v. City of Detroit, 715 F.3d 165 (2013)
› O’Grady vs. Superior Court , 139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal.
App. , 6th Dist., May 26, 2006)
Subpoena what you can
› Subscriber information
› Items not covered by the SCA
› Ex parte court order for other information
Make a discovery request to the State
Getting it…the really hard way
If destruction is suspected, look outside service provider
As the Court to order the user to provide his login and password and for the Court to review social media page in camera
Move for court order for a forensic analysis of witness’ hard drive and recover social media evidence
A CLIENT WALKS INTO THE OFFICE WITH HELPFUL SOCIAL MEDIA EVIDENCE ON HIS SMART PHONE…WHAT NOW?
Save the Information Any W ay You Can – anything can be deleted, so preserving social media evidence in some fashion it hyper-critical
Call an investigator to witness
Email information to ensure time stamp
Take a screencast – can be used to capture words, images and the interactivity between pages
Download user history
Take a photographs of the screen
Print it out
Take the phone (if necessary)
Do all of the above
Preservation Order
Data residing on social media platforms is subject to the same duty to preserve as other types of electronically stored information
Duty to preserve is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation
If you believe social media content may be relevant to your case, make a motion to preserve and ask for a court order
Facebook offers the ability to “Download Your Info.” With just one click of the mouse, users can download a zip file containing timeline information, posts, messages, and photos; information that is not available by merely logging into an account also is included, such as the ads on which the user has clicked, IP addresses that are logged when the user accesses his or her Facebook account
Twitter offers a similar, although somewhat limited, option. Twitter users can download all Tweets posted to an account by requesting a copy of the user’s Twitter “archive”; Twitter does not, however, offer users a self-serve method of obtaining other, non-public information, such as IP logs
INVESTIGATIVE POINTERS Search for Everything…Sort It Out Later
Perform a social media search on:
› Your client
› Every major witness
› Every officer
Many local police departments and prosecutor’s offices have social media pages; perform a search on:
› Police department
› Prosecutor
› Check for officer “comments” on official department posts
› Check police union blogs or comments on news stories
If you find something helpful, preserve it now; incriminating evidence gets deleted
Attempt to get the social media user to confirm to an investigator that they, in fact, posted the information; the earlier you do it, the less likely they are to know how you intend to use it
GETTING IT IN OR KEEPING IT OUT OF EVIDENCE
Relevance
Always argue relevance
Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
Authentication
The Court must be satisfied to a preponderance of the evidence that the evidence it what the proponent claims it to be
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims
Federal Rule 901: Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice — whether
heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.
(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.
Application of the Federal Rule to Social Media cases
States use a combination of the Federal rule and their own local rules in interpreting social media authentication questions
The more closely the State rule resembles the Federal Rule’s ‘distinctive characteristic” standard, the more likely they are to adapt a totality of the circumstances approach to admissibility
Direct Proof
Ask the sender if s/he sent the message
Lay the proper foundation
Evidence should be admitted if the find reasonable probability that that the evidence has not been changed in important respects
If they admit it was them, you are good to go
Indirect Evidence
Connecticut: State v. Eleck, 100 A.3d 817 (2014)
› Validation from the sender would be a way to authenticate but was not available because the sender claimed the account had been hacked
Mississippi: Smith v. State, 136 So. 3d 424 (Miss. 2014)
› Scott Smith was tried and convicted of murder. Included in the evidence offered against him were messages he purportedly sent his wife through Facebook. Some of the messages were incomplete and were attributable to Smith only because they contained his name accompanied by a grainy picture
› At trial, the only authentication of the messages was the wife’s testimony as the recipient; Smith appealed arguing that that the messages were insufficiently authenticated
› The appellate court affirmed the conviction, but in disagreed with the lower courts and held that Smith’s authentication argument had merit
› Mississippi Court agreed with the Connecticut court but, unlike the Connecticut opinion, held that sufficient testimony from a message’s recipient warranted authentication as well
Massachusetts: Commonwealth v. Purdy, 459 Mass. 442 (2011)
› Defendant argued that emails sent from his computer were not properly authenticated because no one saw him type them
› The possibility of alteration cannot be the basis for exclusion
› Name or social media page is not enough
› There must be some “confirming circumstances” to authenticate, and there were in this case
Massachusetts: Commonwealth v. W illiams, 456 Mass. 857 (2010) › Defendant’s brother sent intimidating messages to witness on the eve of trial
› Insufficient evidence to authenticate even though the messages came from a site bearing D’s brother’s photo
› Analogized to telephone calls in that there was no testimony anyone saw D’s brother use the account
New Jersey: Kalola v. Eisenberg, 344 N.J. Super. 198 (App. Div. 2001)
› The method of authentication must be tailored to the technology in question
› New Jersey practice is in accord with these [Federal] principles of authentication founded upon the distinctive substance or contents of a communication, or upon other contextual indicia that the sender or maker of the communication was indeed the person in question. For instance, in a criminal case alleging that the defendant had falsely reported a stolen car to his insurance company, the court found sufficient for authentication purposes the testimony of an insurance agent attesting that he had received a telephone call from a person identifying himself as the defendant, and who displayed "intimate knowledge" of facts concerning the model, year and ownership of the subject vehicle, the date of its disappearance, and the insurance carrier.” State v. Bassano, 67 N.J. Super 526 (App.Div.1954)
Evidentiary Hearings on Authentication
Ask for an evidentiary hearing to explore authentication pre-trial
If opposing the introduction of State’s evidence, consider whether you take away the element of surprise by asking for a hearing
Reply Doctrine
“A writing or telephone conversation may be authenticated indirectly on testimony that one has received a communication with an identified person and that the communication was responsive to the earlier communication”
State v. Mays, 321 N.J. Super. 619, 629 (App. Div 1999)
THERE’S NO PLACE LIKE HOME: WEST VIRGINA
Rule 901. Authenticating or Identifying Evidence
1. In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
2. Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:
1. Testimony of Witness with Knowledge. Testimony that an item is what it is claimed to be.
2. Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
3. Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
4. Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
5. Opinion About a Voice. An opinion identifying a person's voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
6. Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
1. a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
2. a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
7. Evidence About Public Records. Evidence that:
1. a document was recorded or filed in a public office as authorized by law; or
2. a purported public record or statement is from the office where items of this kind are kept.
8. Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
1. is in a condition that creates no suspicion about its authenticity;
2. was in a place where, if authentic, it would likely be; and
3. is at least 20 years old when offered.
9. Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.
10. Methods Provided by a Rule. Any method of authentication or identification provided by the Supreme Court of Appeals of West Virginia.
COMMENT ON RULE 901 Rule 901 was taken verbatim from the federal counterpart with only one stylistic change in 901(b)(10) adding the following phrase taken from the state rule: "provided by the Supreme Court of Appeals of West Virginia." The federal rule is substantively the same as the current rule, but is organized differently for greater clarity. The reference to statutes was deleted because it is not necessary.
Jennifer Sellitti NJ Office of the Public Defender [email protected]
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B Y CO L I N F I EMAN AND A L AN Z A RK Y
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Social media pervades all aspects and strata ofmodern life. A thorough criminal defense inves-tigation therefore requires collecting informa-
tion posted by and about key witnesses. “[S]ocialmedia has resulted in a digital goldmine of potentialevidence, such as profiles, lists of friends, group mem-berships, messages, chat logs, tweets, photos, videos,tags, GPS locations, likes, check-ins, and login timeta-bles.”1 However, even if defense counsel can view post-ings on a witness’s social media accounts, the viewablematerial is often limited to recent content. For exam-ple, if a witness is posting messages publicly onTwitter, only the most recent 3200 tweets or retweetsare accessible, amounting sometimes to only a coupleof weeks or less of content.2 Similarly, while it may bepossible to access a witness’s Facebook account,because a surprising number of Facebook users do notactivate privacy settings, deleted content will not be
viewable. As a result of these and similar limitations,defense counsel may need to subpoena missing infor-mation from social media companies under Fed. RuleCrim. P. 17(c).
The key obstacle to such subpoenas is the StoredCommunications Act3 (SCA), a shield that serviceproviders such as Twitter and Facebook rely on to refusecompliance. Twitter used the SCA to fight a subpoenathe authors had filed in a rape case. In researching theissue, one uncovers surprisingly little case law. This arti-cle discusses legal theories for overcoming SCA-basedarguments against enforcement of defense subpoenas.The authors hope to encourage litigation in this area byarming defense counsel with some arguments to fight forthe production of social media evidence under both theSCA and the U.S. Constitution.
A Case Study in Seeking Historical Social MediaSocial media postings played a pivotal role in a
recent rape case successfully defended by our office,even though our subpoena was ultimately notenforced by the trial court due to Twitter’s argumentsunder the SCA. In that case, the complainant hadposted profusely on Twitter, Facebook, and Instagram.Her readily accessible postings had repeatedly referredto heavy drug and alcohol use; expressed a taste forcasual sexual “hookups” with men of our client’s raceand age; and included jokes and fantasies involvingrape. Alcohol use was an important factor in the case,where the defense was consent, not only in terms ofchallenging the complainant’s recollections and relia-bility, but also because she had given false informationto the police about her alcohol consumption on the
When Acquittal Is Just a Tweet Away:Obtaining Historical Social MediaEvidence From Service Providers That Use the SCA as a Shield
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night of the alleged rape. Her postingsabout casual sex were also an impor-tant part of the story because theywould help explain how our client,who had encountered the complainantin person for the first time after havingbeen Facebook “friends,” might believeshe was amenable to casual sex. And,of course, that she posted joking refer-ences to rape after she was allegedlyassaulted was arguably inconsistentwith her claim of rape. Her posts alsoprompted investigation into her men-tal health status because some of themsuggested she was attention-seekingand mentally unstable.
We realized we might face significantadmissibility hurdles for some of this evi-dence under Fed. R. Evid. 412, but thefirst task was to obtain all possibly rele-vant statements. While the complainant’scurrent postings provided fertile scopefor investigation, we were also concernedwith her social media from the time ofthe incident, over a year prior to ourinvolvement in the case. Accordingly, weobtained a Rule 17(c) subpoena to serveon Twitter, after providing the court witha general showing of the material’s rele-vance to the defense strategy.4
Although the subpoena was issuedex parte and under seal,5 we knew thatthe complainant would learn of ourinterest in her account. When a subpoe-na seeks personal or confidential infor-mation about an alleged victim, Rule17(c)(3) requires giving him or hernotice, absent a court finding of “excep-tional circumstances.” Defense counselwill therefore need to weigh the poten-tial costs of revealing part of the defenseinvestigation prior to trial against theneed to collect social media evidence. Inthis case, the need for this evidence wasclear. Obtaining it was not so simple,however, as Twitter refused to complywith the subpoena and opposed ourMotion to Show Cause with argumentsbased on the SCA.6
The Stored Communications ActCongress enacted the SCA in
1986 as part of the ElectronicCommunications Privacy Act (ECPA).7
Its main focus was protecting users ofelectronic services from governmentalintrusion: “The SCA was enacted becausethe advent of the Internet presented ahost of potential privacy breaches that theFourth Amendment does not address.”8
The SCA was also directed at “possiblewrongful use and public disclosure by …unauthorized private parties.”9
The SCA is “a complex, often con-voluted” statute.10 In particular, its rela-
tion to modern websites is a “confusingand uncertain area of the law.”11
Confusion and uncertainty are presentbecause the SCA was written when theInternet was in its infancy and its“statutory framework is ill-suited toaddress modern forms of communica-tion.”12 As a result, “[c]ourts have strug-gled to analyze problems involvingmodern technology within the confinesof this statutory framework, often withunsatisfying results.”13 It is now fairlywell established, however, that socialnetworks such as Facebook and Twitterare providers covered under the SCA.14
As such, they are covered by any prohi-bitions in the SCA against the disclo-sure of information.
Despite its convolutions, one thingabout the SCA is plain: It is designed toprotect private information. “The touch-stone of the Electronic CommunicationsPrivacy Act [ECPA] is that it protectsprivate information. The language of thestatute makes clear that the statute’s pur-pose is to protect information that thecommunicator took steps to keep pri-vate.”15 (The SCA is part of the ECPA.)
To that end, the SCA contains abroad prohibition preventing coveredproviders from disclosing “the contentsof a communication while in electronicstorage by that service.”16 While this lan-guage seems all-encompassing, the SCAalso permits certain limited disclosures,including disclosure in response to cer-tain forms of governmental process,such as search warrants for certain infor-mation and subpoenas for other infor-mation.17 These disclosure provisionsenable the government to obtain the his-torical information it needs throughgrand jury subpoenas. Of course, it isnever so easy for the defense.
Private party subpoenas are notmentioned by the SCA and the courtshave generally held that civil subpoenasare not effective to compel disclosure byproviders.18 Moreover, we are not awareof any case specifically addressing thevalidity of Rule 17(c) criminal subpoe-nas under the SCA, and there seems tobe no basis for distinguishing civil andcriminal subpoenas under the SCA itself.However, at least when it comes to his-torical information that a witness hadpublicly posted on social media, crimi-nal defense attorneys have a strong argu-ment that the SCA permits disclosure.
Twitter’s Arguments for NotComplying With the Subpoena
In our case, Twitter contended itneed not comply with the subpoenabecause of the SCA’s broad prohibition
on disclosing electronic communica-tions, absent a governmental warrant orsubpoena. Twitter argued, probablycorrectly, that the Federal PublicDefender Office was not, for these pur-poses, a governmental entity. Twitteralso noted that private party subpoenasare not among the Act’s limited excep-tions to this prohibition.19
Twitter then argued that the defenseshould simply obtain the complainant’spostings directly from her. It noted thatits website gives instructions on how auser can access all postings, not just the3200 that are available any one time. Itoffered to provide the complainant witha copy of her entire account, which wecould then subpoena from her. Twitteralso offered to provide us with a digitalsignature for the archive, so that we sup-posedly could ensure that none of thecontent had been altered before thecomplainant produced it to us.
Twitter’s solution may be unaccept-able for several reasons in the criminaldefense context. First, locating the wit-ness for service can be difficult or impos-sible. Second, subpoenaing the witnesswill likely get the government involved,whereas obtaining Rule 17(c) subpoenasis generally an ex parte procedure. Whilethe rule requires notice to the party if thesubpoena seeks personal or confidentialinformation about a victim, it is the sub-poenaed party, not the government, whohas standing to object.20 Moreover, webelieved that simply notifying the allegedvictim that her records had been subpoe-naed, rather than demanding that sheproduce the records herself, was muchless likely to generate interference withthe collection process from either her orthe prosecution. And, of course, in a casewhere the provider does not offer to givethe witness a complete copy of herrecords, a subpoena may be utterly inef-fective. Even if a witness could be com-pelled to obtain records from theInternet that she does not physically pos-sess but are available to her from a thirdparty, there would be myriad practicalproblems with ensuring complete andaccurate production.
Twitter’s proposal also put potentialroadblocks in the way of admissibility ofthe material. If a custodian of recordsfrom the social media entity testifies,admission should be straightforward.However, if a witness is subpoenaed underTwitter’s proposal and produces the diskprovided by the social media entity, shecan truthfully testify that she has noknowledge of its contents or authenticity.While this situation would not prevent thedefense from showing the witness’s partic-
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ular postings and establishing them as herstatements by means of a user name orother identifying content, it could wellprove more problematic than laying afoundation through the service provider.
For these reasons, we rejectedTwitter’s proposal and brought a Motionto Show Cause, challenging Twitter’sinterpretation of the SCA.21 We arguedthat Twitter’s position regarding the SCAwas untenable, particularly as to deletedor archived content that the accountholder had previously published withoutprivacy restrictions or to a wide audience.
The SCA Does Not Apply To Public Postings
Fortunately for defense counsel, theSCA contains language that arguablyallows disclosure of social media contentif it had been publicly available at anytime. Section 2702(b)(1) states: “Aprovider … may divulge the contents ofa communication (1) to an addressee orintended recipient of such communica-tion or an agent of such addressee orintended recipient[.]” When “anaddressee or intended recipient” is thepublic at large, this exception should beavailable to require disclosure to defensecounsel. Our client, along with everyoneelse with access to the Internet, was anintended recipient of the public commu-nications. Thus, Twitter may disclosethose communications, even if the com-munications were later deleted orarchived and no longer generally accessi-ble to the public.
This conclusion is consistent withthe purpose of the SCA which, as noted,is to protect private information: “Thepurpose of the SCA is to create a zone ofprivacy to protect Internet subscribersfrom having their personal informationwrongfully used and publicly disclosedby unauthorized private parties.”22
In our case, the complainant hadthousands of “followers” and did notrestrict access to her feed. (For the unini-tiated, a Twitter follower is someonewho has asked to receive anotheraccount holder’s Tweets as they are post-ed.) In addition, nonfollowers (the pub-lic in general) could view, copy andredistribute the complainant’s Tweetssimply by going to her Twitter feed andscrolling through the messages, pictures,and videos she had posted. Twitter’sterms of service also advise users that“[w]hat you say on Twitter may beviewed all around the world instantly.”23
Of course, the complainant did nothave the defense team in mind as recipi-ents of her posts. Nevertheless, she clear-ly intended that the entire world would
be able to read her posts, and our clientwas among that intended audience.Further, because she and our client wereFacebook “friends,” and because she hadposted her Twitter “handle” onFacebook, our client was also within anarrower intended audience. These factsbrought into play the exception for dis-closure in § 2702(b)(1).
This conclusion — that any Tweetspreviously distributed publicly were notprotected by the SCA — is supported byCrispin v. Christian Audigier, Inc., 24 theseminal case regarding social mediawebsites under the SCA. In Crispin, adefendant in civil litigation served sub-poenas duces tecum on, among others,Facebook and MySpace. A magistratejudge concluded that these sites were notwithin the protections of the SCA andrequired disclosure under § 2702(b)(1)because, as the district court explained,the magistrate judge had found thesocial media sites “engaged in publicmessaging only and concluded that thisfact was dispositive.”25 The district court,to the contrary, concluded that manymessages were not public and thus notsubject to the § 2702(b)(1) exception. Itreversed the magistrate judge’s decisionin part, quashing the subpoenas “to theextent they seek private messaging.”26
However, as to Facebook “wall” postings(comparable to a Twitter page) andMySpace comments, the court remand-ed for further factual findings.
Specifically, the court analogized aFacebook wall and MySpace comments toa bulletin board service (BBS), a frequentmeans of communication at the time theSCA was enacted.27 Regarding BBSs, thecourt pointed out, “[u]nquestionably, thecase law … [requires] the BBS be restrict-ed in some fashion [to be protected underthe SCA]; a completely public BBS doesnot merit protection under the SCA.”28
“Only electronic bulletin boards whichare not readily accessible to the public areprotected under the Act.”29
The key question in Crispin wastherefore whether the postings werepublic or subject to restricted access: Therecord “admits of two possibilities;either the general public had access toplaintiff ’s Facebook wall and MySpacecomments, or access was limited to afew.”30 The court believed that “a reviewof plaintiff ’s privacy settings woulddefinitively settle the question”31 andremanded to determine “the extent ofaccess allowed to his Facebook wall andMySpace comments.”32 Although thecourt did not expressly say so, the clearimport of this discussion was that if thepublic had been allowed access to the
wall and comments, the subpoena wouldnot be quashed.33
The Crispin court bolstered itsanalysis with reliance on the SCA’s leg-islative history:
[T]he statute’s legislative histo-ry states that “a subscriber whoplaces a communication on acomputer ‘electronic bulletinboard,’ with a reasonable basisfor knowing that such commu-nications are freely made avail-able to the public, should beconsidered to have given con-sent to the disclosure or use ofthe communication.”34
Thus, under Crispin, after an indi-vidual knowingly posts information pub-licly, with “a reasonable basis for knowingthat such communications [were] freelymade available to the public,” that infor-mation is not protected by the SCA.
Further evidence that the SCA doesnot protect formerly public communica-tions is found in a penalty provisionapplicable to the SCA.35While this provi-sion penalizes the unauthorized inter-ception of electronic communications, itexplicitly excludes the interception ofpublic communication from its reach:“It shall not be unlawful … to interceptor access an electronic communicationmade through an electronic communi-cation system that is configured so thatsuch electronic communication is readi-ly accessible to the general public[.]”36
The Eleventh Circuit noted this excep-tion in Snow v. DirecTV, Inc., stating,“The legislative history and the statutorystructure clearly show that Congress didnot intend to criminalize or create civilliability for acts of individuals who‘intercept’ or ‘access’ communicationsthat are otherwise readily accessible bythe general public.”37 If random individ-uals may legally intercept communica-tions generally available to the public, itseems an unwarranted obstruction of adefendant’s trial rights to prevent a serv-ice provider from releasing such com-munications in the context of a lawfulsubpoena filed in a criminal case.(Constitutional concerns relevant to acriminal case are discussed below.)
These contentions are not com-pletely immune from attack. In itsresponse to our motion for an order toshow cause, Twitter characterized as“dicta” the distinction drawn in Crispinbetween public and non-public commu-nications. It was not. If the public post-ings were not subject to subpoena, therewould have been no need for the court
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to remand the matter to the magistratejudge. Rather than being dicta, thecourt’s distinction, along with its con-clusion that publicly available postingswere subject to subpoena, were at theheart of the court’s ruling.
Twitter’s stronger argument wasthat Crispin’s pronouncement — that “acompletely public BBS does not meritprotection under the SCA” — relied oncases considering unauthorized access toonline bulletin boards under § 2701 ofthe SCA, not disclosures by serviceproviders under § 2702. In Twitter’sview, even if it were anomalous thatcommunications could lawfully be inter-cepted but not lawfully disclosed by theprovider, that conclusion followed fromthe plain language of the statutes.
But even if Crispin were distinguish-able or its reliance on case law unsound,Twitter had no meaningful rebuttal tothe argument that, given the language in§ 2702(b)(1) allowing disclosure to“intended recipients” and the SCA’sstatutory structure and history, the com-plainant’s public postings were not pro-tected by the SCA. Instead, it took a posi-tion regarding those exceptions thatseems utterly unsupportable. Twitternoted that these exceptions in the SCAonly authorized permissive disclosure,given the statute’s provision that “aprovider … may divulge the contents ofa communication” coming within anexception.38 From this, Twitter contendedthat a court could not compel disclosurebecause that would make the disclosuremandatory, not permissive. We arguedthat this was nonsense; many actions inbusiness and otherwise are normally per-missive, but that fact does not bar a courtfrom ordering them, pursuant to a sub-poena or otherwise. Although a courtmay not be able to order a party to dosomething that a statute prohibits, cer-tainly the court may order that party todo something the statute permits it to do.The fact that a statute allows, rather thancompels, an entity to act does not meanthat a court may not, in appropriate cir-cumstances, compel that action.
SCA Does Not ProtectCommunications When UserConsents to Disclosure UnderProvider’s Terms of Service
In its responsive pleadings, Twitteralso failed to address a second provisionin the SCA, one that allows dis-closure when a user has consented.Section 2702(c)(2) of the SCA allowsdisclosure “with the lawful consent ofthe customer or subscriber.” By usingTwitter, users are deemed to have con-
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sented to its privacy policies.39 Thesepolicies explicitly tell users it may dis-close “nonprivate” information to com-ply with the law or a legal request, andthey also take an expansive view of whatis not private. In this regard, Twitter tellsits users that “[m]ost of the informationyou provide us is information you areasking us to make public. This includesnot only the messages you Tweet and themetadata provided with Tweets, such aswhen you Tweeted, but also the lists youcreate, the people you follow, the Tweetsyou mark as favorites or Retweet, andmany other bits of information thatresult from your use of the Services.”40
Twitter also warns users that “[w]henyou share information or content likephotos, videos, and links via the Services,you should think carefully about whatyou are making public.”41 It advises themthat it may “disclose your information ifwe believe that it is reasonably necessaryto comply with a law, regulation or legalrequest[.]”42 Even more broadly, Twittertells users that “[w]e may share or discloseyour nonprivate, aggregated or otherwisenonpersonal information, such as your… public Tweets[.]”43
Case law supports the argumentthat, regardless of whether a user’s com-munications were public, she has con-sented to disclosure by approving termsof service that allow for it. For example,in Kirch v. Embarq Mgmt. Co.,44 theplaintiffs alleged unauthorized intercep-tions under the ECPA (which containsthe SCA). The court ruled that the plain-tiffs had consented to any interceptionby having agreed to the terms of defen-dant’s privacy policy, through their useof the Internet under that policy’s terms.That policy gave notice that plaintiff ’sInternet communications could beshared.45 Other cases are in accord.46
It is important to bear in mind,however, that there are potential nega-tive consequences to arguing that a web-site’s terms of service operate as a bind-ing contract, so that they can, for exam-ple, waive a user’s privacy rights. Whilein one case this may limit a victim’s pri-vacy, in another case it may limit a defen-dant’s privacy. In addition, equatingterms of service to a contract can poten-tially lead to criminal liability. For exam-ple, the Ninth Circuit sitting en bancreversed a panel opinion and interpretedthe Computer Fraud and Abuse Act(CFAA)47 narrowly, expressing concernthat to do otherwise could lead to crim-inal liability for, inter alia, “someonewho violates the terms of service of asocial networking website”48 or thosewho “use [] work computers for person-
al purposes.”49 Other circuits, however,have interpreted the CFAA more broad-ly. They did so in contexts that did notdirectly involve the Ninth Circuit’s“parade of horribles” but thereby gavethe CFAA a scope that potentially couldlead to such results.50
Constitutional ArgumentsFavoring Disclosure
These arguments under the SCAhave not addressed the unique contextof a subpoena in a criminal case. Adefendant, in addition to havingrecourse to the limited disclosureexceptions within the SCA, is protectedby the Fifth and Sixth Amendments. If adefendant is barred from obtaining anysocial media content in the possessionof social media providers, no matterhow essential that content may be to afair trial, the defendant is arguablydeprived of the right to compulsoryprocess under the Sixth Amendmentand to due process under the Fifth.
a. Implications of the SixthAmendment Right toCompulsory ProcessUnder the Sixth Amendment, the
defendant has a fundamental right topresent his or her case to the jury. TheCompulsory Process Clause is part ofthis right, enabling the defendant toobtain the persons and information nec-essary to present a defense: “The right ofan accused to have compulsory processfor obtaining witnesses in his favorstands on no lesser footing than theother Sixth Amendment rights[.]”51
Statutes that interfere with a defen-dant’s right to compulsory process havebeen held invalid. In Washington v.Texas, the Supreme Court held that adefendant’s right to compulsory processrendered void a Texas statute that barredpersons charged as co-participants fromtestifying for one another. Similarly, inChambers v. Mississippi, it reasoned thatif critical testimony would be excludedunder Mississippi’s hearsay rule, thatrule “may not be applied mechanisticallyto defeat the ends of justice.”52
While Washington and Chambersenshrined the fundamental nature ofthe defendant’s ability to present adefense, they dealt with the testimonyof witnesses, not the production ofinformation. Few cases address theCompulsory Process Clause in thecontext we faced in our fight withTwitter, where the subpoena wasissued but then challenged under astatute. Instead, courts have typicallydenied the request for a subpoena in
the first place, on the grounds thedefendant did not make a “plausibleshowing” that the subpoenaed infor-mation (or testimony) would be mate-rial and favorable.53 In our case, thetrial court was satisfied that the evi-dence sought was at least potentiallymaterial and favorable; the samplingof recent postings that we had offeredin our ex parte motion for a subpoenasupported the conclusion that thecomplainant had likely posted similarcontent around the time of the allegedassault. If nothing else, any statementsshe had posted about alcohol or druguse were potentially fruitful avenues ofcross-examination.
Interestingly, the lead case address-ing the merits of an alleged bar to com-pliance with a pretrial subpoena didnot involve a defendant’s right to com-pulsory process but a prosecutor’s rightto obtain information. In United Statesv. Nixon,54 a special prosecutor soughtproduction of presidential recordsunder Rule 17(c). President Richard M.Nixon, an “unindicted co-conspirator”of seven others who had been chargedas part of the Watergate scandal, assert-ed an absolute privilege for presidentialcommunications. Although it was thegovernment seeking the information,the Supreme Court spoke more gener-ally about access to compulsoryprocess: “To ensure that justice is done,it is imperative to the function of courtsthat compulsory process be availablefor the production of evidence neededeither by the prosecution or by thedefense.”55 The Court weighed the valueof “the need for confidentiality of high-level communications”56 against thespecial prosecutor’s need for the infor-mation, holding that the privilege couldnot pose an absolute bar to the produc-tion of information in a criminal case.57
In other words, Nixon held that aprivilege had to give way to enable aprosecutor to fairly litigate a criminalcase. Its rule then would seem to applywith even greater force to a defendantprotected by the Sixth Amendmentright to compulsory process. Indeed,in Nixon, the Court stated that “[i]t isthe manifest duty of the courts to vin-dicate” the rights guaranteed to adefendant by the Sixth Amendment,“and to accomplish that it is essentialthat all relevant and admissible evi-dence be produced.”58
Under Nixon, then, the SCAshould not be permitted to pose anabsolute bar to the production of
(Continued on page 34)
stored media content. Just as the NixonCourt weighed the value of the presi-dential privilege against the prosecu-tor’s need for particular information,courts applying the SCA should weighthe value of the statute’s prohibitionson disclosure against a defendant’sneed to present his or her case. In caseswhere the complainant or witness hadpreviously made the communicationpublicly available, or had effectivelyconsented to disclosure because of theterms of service agreed to, the bararguably created by the SCA serves novalue at all. Moreover, when the partyseeking the information is the defen-dant, not a prosecutor, the SixthAmendment right of a defendant topresent his or her case should trumpany value to the media providers ortheir customers of nondisclosure.
b. Due Process ImplicationsClosely related to the Sixth
Amendment’s right to compulsoryprocess is the Fifth Amendment’s guar-antee of due process and a defendant’s“right to a fair opportunity to defend
against the [government’s] accusa-tions.”59 A constitutional problem aris-es from the sharp difference betweenhow the SCA (in the view of socialmedia providers) treats the prosecu-tion and defense. The providers usethe SCA as a shield to prevent disclo-sure to defense counsel, while the SCAexpressly authorizes production ofstored communications pursuant togrand jury subpoenas, warrants, andother prosecutorial devices.60 Thisunfairly skews access to information infavor of the government. In a criminalcase, both parties must have balancedaccess to potential evidence.
In Washington v. Texas, theSupreme Court noted the “absurdity”that the state could call the co-partici-pant while the defendant could not.61
It would be equally absurd and a viola-tion of due process if courts held thatthe SCA prevents defense counsel fromsubpoenaing records freely available tothe government under the statute.
Similarly, in Wardius v. Oregon,62the Supreme Court said it would be“fundamentally unfair” if the prosecu-tion could learn information from thedefense that the defense could not learn
from the prosecution.63 Wardiusinvolved a discovery provision thatrequired the defense to notify the stateof alibi witnesses, but did not requirethe state to provide reciprocal discoveryof alibi rebuttal witnesses. In reversingthe defendant’s conviction, the Courtnoted that, while the Due ProcessClause does not address the absoluteamount of discovery afforded parties ina criminal case, “it does speak to the bal-ance of forces between the accused andhis accuser.”64 The issue under the SCAis not the exchange of informationbetween the parties but the ability of theparties to obtain information. It is nev-ertheless fundamentally unfair that thegovernment can obtain the contents ofcommunications with a mere subpoena,while the defense is statutorily barredfrom obtaining them by any means, nomatter how exculpatory they might be.
More recently, the Ninth Circuit inAlcala v. Woodford65 elaborated on thescope of a defendant’s due process rightswhen it held that a trial court had erro-neously barred a defense expert fromtestifying about the unreliability of hyp-notically influenced testimony from akey prosecution witness. The courtapplied a multifactor balancing testwhen weighing the defendant’s right topresent his defense against the eviden-tiary rule that the trial court had reliedon to exclude the testimony. The courtlooked to such factors as the probativevalue of the evidence, the purpose of theevidentiary rule, and how well the rule’spurpose applies to the case at hand.66
Even accepting that, in general, theSCA serves important purposes, thosepurposes are not served when it comesto messages that have been distributedto the public. The purpose of the SCA isto protect privacy breaches by the gov-ernment and wrongful use and publicdisclosure by unauthorized private par-ties. Those interests are not furtheredwhen the Internet user has publiclyposted the communications or has con-sented, pursuant to a forum’s terms ofuse, to their disclosure. On the otherside of the balance, the defendant pre-sumably can show a legitimate need forthe information and a significant likeli-hood that the information may containevidence that would be critical at trial.
One weakness in both the com-pulsory process and due process argu-ments is that the information may beavailable from the witness. As dis-cussed above, Twitter had offered inour case to provide all of the informa-tion we had subpoenaed on a disk toits customer (the complainant), and
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YOUNEVERSTANDALONE
n Subpoenaed for properly representing a clientn Threatened with contempt
n Hit with an improper motion to disqualify you from a case
(Continued from page 30)
suggested that we then subpoena thedata directly from her. As also dis-cussed above, there are importantpractical and tactical reasons why this“solution” may not be acceptable to adefendant. However, a trial court mayconclude that the SCA’s arguable baron obtaining the information from theservice provider does not create anunconstitutional burden if the defensecan ultimately obtain the same infor-mation from the social media user.
Conclusion
In our case, the court declined toreach either the SCA or constitutionalissues; it simply ruled, with no mean-ingful analysis, that the defense had tosubpoena the postings from the com-plainant. That decision will remainunreviewed by a higher court becausethe impeachment material we hadbeen able to collect from availablesocial media and other sources wassufficient (along with other weakness-es in the prosecution’s case) to hang the jury 9-3 for acquittal. Aresolution involving a plea to a relatively minor offense and minimaljail time followed.
Litigating SCA issues will not be
easy. Confronted with a confusingstatute, the trial court in our case simplyadopted the position that Twitter andother service providers have taken whenconfronted with defense subpoenas. Itrequires careful analysis of the statuteand its purposes to see that, at a mini-mum, publicly disseminated socialmedia is subject to defense subpoenas.Given the ever-increasing importancethis type of information may hold fordefendants, further litigation surround-ing defense subpoenas to social mediaproviders is inevitable.
Thanks to Stacey Brownstein andAmy Strickling, who helped guide usthrough the world of social media andwere relentless in helping defend the casediscussed in this article.
Notes1. Justin P. Murphy & Adrian Fonticella,
Social Media Evidence in GovernmentInvestigations and Criminal Proceedings: AFrontier of New Legal Issues, 19 RICH. J.L. &TECH. 11, *3 (2013).
2. Recently, Twitter began makingolder public tweets available through itssearch function, but this function will notcapture deleted tweets. Other searchengines, such as Topsy.com, may help cap-ture historical Twitter messages, but such
tools are cumbersome and there are likelyto be significant gaps in the content thatthey recover.
3. 18 U.S.C. § 2701 et seq.4. Numerous cases assert that Rule
17(c) subpoenas are not to be used as a dis-covery device. See, e.g., United States v.George, 883 F.2d 1407, 1418 (9th Cir. 1989).These cases are generally based on thedecision in United States v. Nixon, 418 U.S.683, 698 (1974), discussed in text at note 54.A more nuanced view of how Nixon shouldbe applied in the context of defenserequests for Rule 17(c) subpoenas can befound in cases such as United States v.Rajaratnam, 753 F. Supp. 2d 317, 320 n.1(S.D. N.Y. 2011); United States v. Tucker, 249F.R.D. 58, 66 (S.D.N.Y. 2008); and UnitedStates v. Nachamie, 91 F. Supp. 2d 552, 562(S.D.N.Y. 2000).
5. See generally United States v. Gaddis,891 F.2d 152, 154 (7th Cir. 1989) (“indigentdefendants, in requesting the issuance of asubpoena and the payment of witnessexpenses, need reveal their defense theoryonly to an impartial court and not to theirgovernment adversary.”).
6. As a side note, some serviceproviders make it difficult to effect service.While Facebook’s website states that it willaccept service of grand jury subpoenasfrom law enforcement agencies by fax, itrequires personal service from other partieswithout indicating where or on whom serv-ice is supposed to be made.
7. Orin Kerr, A User’s Guide to the StoredCommunications Act, and a Legislator’sGuide to Amending It, 72 GEO. WASH. L. REV.1208, 1208 (2004).
8. Quon v. Arch Wireless Operating Co.,Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev’d onother grounds, City of Ontario, Cal. v. Quon,560 U.S. 746 (2010).
9. United States v. Councilman, 418 F.3d67, 80-81 (1st Cir. 2005) (emphasis added)(quoting S. Rep. No. 99B541, at 3 (1986),reprinted in 1986 U.S.C.C.A.N. 3555, 3557).
10. United States v. Smith, 155 F.3d1051, 1055 (9th Cir.1998).
11. Konop v. Hawaiian Airlines, Inc., 302F.3d 868, 874 (9th Cir. 2002).
12. Id.13. Crispin v. Christian Audigier, Inc., 717
F. Supp. 2d 965, 971 n.15 (C.D. Cal. 2010)(quoting Konop at 874 (bracketed materialand ellipsis in Crispin)).
14. See Crispin, 717 F. Supp. 2d at 983(concluding that “private messages andpostings on Facebook and MySpace” wereimmune from a civil subpoena (emphasisadded)).
15. Ehling v. Monmouth-Ocean Hosp.Serv. Corp., 961 F. Supp. 2d 659, 668 (D.N.J.2013).
16. 18 U.S.C. § 2702(a)(1).
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CLE on the goAny time; Any place
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Where Do You F i nd Th e T im e?
17. See 18 U.S.C. § 2703. The SCA covers two types of providers —providers of electronic communicationservice (ECS) and providers of remotecomputing service (RCS), defined at§ 2510(14) and 2711(2), respectively. SeeKerr, note 7, at 1214. The differencebetween the two affects what kinds ofprocess the government must use toobtain information from them. See Kerr at1223 and 18 U.S.C. § 2703.
18. See, e.g., FTC v. Netscape Commc’nsCorp., 196 F.R.D. 559, 561 (N.D. Cal. 2000)(SCA prohibits the disclosure of stored elec-tronic communications in response to civiltrial subpoenas).
19. See 18 U.S.C. § 2702(b)(1)-(8)regarding permitted disclosures and 18U.S.C. § 2703 regarding required disclo-sures.
20. See, e.g., United States v. Tomison,969 F. Supp. 587, 591-92 (E.D. Cal. 1997).
21. See United States v. Myers, 593 F.3d338, 342 (4th Cir. 2010) (reflecting thatthe government moved for, and districtcourt had issued, an order to a defendantto show cause why he should not be heldin contempt for failure to comply with aRule 17(c) subpoena); Petroleos Mexicanosv. Crawford Enters., Inc., 826 F.2d 392, 395(5th Cir. 1987) (reflecting that defendantsought and district court issued an ordercompelling a third party to comply with aRule 17(c) subpoena, and when thirdparty failed to comply, court ordered ashow cause hearing).
22. Special Markets Ins. Consultants, Inc.v. Lynch, 2012 WL 1565348, at *2 (N.D. Ill.May 2, 2012) (internal quotation marks andcitation omitted).
23. See https://twitter.com/privacy(last accessed Feb. 23, 2015).
24. 717 F. Supp. 2d 965, 971 n.15 (C.D.Cal. 2010).
25. 717 F. Supp. 2d at 980. 26. Id. at 991. 27. “Computer bulletin boards general-
ly offer both private electronic mail serviceand newsgroups. The latter is essentiallyemail directed to the community at large,rather than a private recipient.” Id. at 980(quoting MTV Networks v. Curry, 867 F. Supp.202, 204 n.3 (S.D.N.Y. 1994)).
28. Crispin at 981, referring to Konop v.Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9thCir. 2002).
29. Id. (quoting Kaufman v. Nest Seekers,LLC, 2006 WL 2807177, at *5 (S.D.N.Y. Sept.26, 2006)).
30. Id.31. Id. 32. Id. 33. A review of the Crispin docket does
not reflect what occurred on remand.34. Viacom Int’l Inc. v. Youtube Inc., 253
F.R.D. 256, 265 (S.D.N.Y. 2008) (citing toH.R. Rep. No. 99B647, at 66 (1986)), citedand discussed in Crispin, 717 F. Supp. 2d at990. See also Ehling, 961 F. Supp. 2d at 668(relying on Crispin, along with othercases, in concluding that when it comesto privacy protection, the critical inquiryis whether Facebook users took steps tolimit access to the information on theirFacebook walls).
35. 18 U.S.C. § 2511.36. 18 U.S.C. § 2511(g)(I). Although
§ 2511 is not itself part of the SCA, by itsexpress terms it applies to Chapter 121,which is the SCA.
37. 450 F.3d 1314, 1320-21 (11th Cir.2006).
38. 18 U.S.C. § 2702(b).39. “You understand that through your
use of the Services you consent to the col-lection and use (as set forth in the PrivacyPolicy) of this information, including thetransfer of this information to the UnitedStates and/or other countries for storage,processing and use by Twitter.” Seehttps://twitter.com/tos?lang=en (last access-ed March 3, 2015).
40. Go to https://twitter.com/privacy?lang=en (last accessed March 3, 2015).
41. Id. 42. Id.43. Id. 44. 2011 WL 3651359 (D. Kan. Aug. 19,
2011).45. On appeal, 702 F.3d 1245, 1249
(10th Cir. 2012), the court of appeals did notrule on this issue because it affirmed thedistrict court on other grounds.
46. See Deering v. CenturyTel, Inc., No.10B63BBLGBRFC, 2011 WL 1842859 (D.Mont. May 16, 2011) (similar ruling by dis-trict court, not appealed); Mortensen v.Bresnan Commc’ns, L.L.C., No. 10B13BBLGBRFC, 2010 WL 5140454 (D. Mont.Dec. 13, 2010) (same).
47. 18 U.S.C. § 1030.48. United States v. Nosal, 676 F.3d 854,
856 (9th Cir. 2012) (en banc).49. Id. at 860. 50. See United States v. Rodriguez, 628
F.3d 1258 (11th Cir. 2010); United States v.John, 597 F.3d 263 (5th Cir. 2010); Int’lAirport Ctrs., LLC v. Citrin, 440 F.3d 418 (7thCir. 2006).
51. Washington v. Texas, 388 U.S. 14, 18(1967).
52. 410 U.S. 284, 302 (1973).53. See, e.g., United States v. Guild, No.
1:07cr404 (JCC), 2008 WL 134562, at *4 (E.D.Va. Jan. 9, 2008).
54. 418 U.S. 683 (1974). 55. Id. at 709. 56. Id. at 706. 57. Id. at 707.58. Id. at 711.
59. Chambers, 410 U.S. at 294.60. 18 U.S.C. § 2703(b)(1)(B) and
2705. The government may obtain thecontents of such communications froman ECS for communications in storageless than 180 days pursuant to a warrantunder the Federal Rules of CriminalProcedure or a comparable state warrant.For communications in storage morethan 180 days, or communications froman RCS, it may obtain them through awarrant. Or it may provide notice to thesubscriber or customer and then obtainthe contents of the communicationsthrough an administrative subpoena,grand jury or trial subpoena, or a court order.
61. 388 U.S. at 22.62. 412 U.S. 470 (1973).63. Id. at 476. 64. Id. at 474. 65. 334 F.3d 862 (9th Cir. 2003). 66. Id. at 877 (citing Miller v. Stagner,
757 F.2d 988, 994-95 (9th Cir.1985), amend-ed 768 F.2d 1090). n
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About the AuthorsColin Fieman has been an Assistant Fed-
eral Public Defend-er in the WesternDistrict of Wash-ington since 2002.
Colin Fieman Federal Public Defender’s Office1331 Broadway, Suite 400 Tacoma, WA 98402 253-593-6710 Fax 253-593-6714
Alan Zarky is a Research and WritingAttorney in theWestern District ofWashington, wherehe has served since2011.
Alan ZarkyFederal Public Defender’s Office1331 Broadway, Suite 400 Tacoma, WA 98402 253-593-6710 Fax 253-593-6714