Cal: Victim and witness’s public social media pages subject to subpoena by defense (with a history of the SCA)

Murder defendants sought private and public Facebook pages of the victim and state’s witnesses for their defense. The court of appeals quashed, and the court remands. The public pages shall be produced because they are public by consent. There’s a history of the Stored Communications Act, and this case isn’t over. Facebook, Inc. v. Superior Court of San Francisco, 2018 Cal. LEXIS 3635 (May 24, 2018):

In light of these determinations we conclude that the Court of Appeal was correct to the extent it found the subpoenas unenforceable under the Act with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted. But we conclude the court’s determination was erroneous to the extent it held section 2702 also bars disclosure by providers of communications that were configured by the registered user to be public, and that remained so configured at the time the subpoenas were issued. As we construe section 2702(b)(3)’s lawful consent exception, a provider must disclose any such communication pursuant to a subpoena that is authorized under state law.

Ultimately, whether any given communication sought by the subpoenas in this case falls within the lawful consent exception of section 2702(b)(3), and must be disclosed by a provider pursuant to a subpoena, cannot be resolved on this record. Because the parties have not until recently focused on the need to consider the configuration of communications or accounts, along with related issues concerning the reconfiguration or deletion history of the communications at issue, the record before us is incomplete in these respects. Accordingly, resolution of whether any communication sought by the defense subpoenas falls within the statute’s lawful consent exception must await development of an adequate record on remand.

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