FACEBOOK v. S.C.

Petitioners’ Answer Brief on the Merits

Cal.February 16, 2016

IN THE SUPREME COURT OF CALIFORNIA Fei 42016 rrank @. VMicGulre Clerk No. $230051 { Daeouly FACEBOOK,INC., INSTAGRAM, LLC, AND TWITTER,INC., Petitioners, Vv. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent. DERRICK D. HUNTERand LEE SULLIVAN, Real Parties in Interest. After Published Opinion by the Court of Appeal First Appellate District, Division 5, No. A144315 Superior Court of the State of California County of San Francisco The Honorable Bruce Chan, Judge Presiding Nos. 13035657, 13035658 ANSWERBRIEF ON THE MERITS Eric D. Miller, Bar No. 218416 *James G. Snell, Bar No. 173070 EMiller@perkinscoie.com JSnell@perkinscoie.com John R. Tyler (pro hac vice Sunita Bali, Bar No. 274108 applicationforthcoming) SBali@perkinscoie.com RTyler@perkinscoie.com Perkins Coie LLP Perkins Coie LLP 3150 Porter Drive 1201 Third Avenue, Suite 4900 Palo Alto, CA 94304 Seattle, WA 98101 Telephone: 650-838-4300 Telephone: 206-359-8000 Facsimile: 650-838-4350 Facsimile: 206-359-9000 Attorneys for Petitioners Facebook,Inc., Instagram, LLC, and Twitter, Inc. IN THE SUPREME COURTOF CALIFORNIA No. 8230051 FACEBOOK,INC., INSTAGRAM, LLC, AND TWITTER,INC., Petitioners, THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent. DERRICK D. HUNTER and LEE SULLIVAN, Real Parties in Interest. After Published Opinion by the Court of Appeal First Appellate District, Division 5, No. A144315 Superior Court of the State of California County of San Francisco The Honorable Bruce Chan,Judge Presiding Nos. 13035657, 13035658 ANSWERBRIEF ON THE MERITS Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com John R. Tyler (pro hac vice applicationforthcoming) RTyler@perkinscoie.com Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101 Telephone: 206-359-8000 Facsimile: 206-359-9000 *James G. Snell, Bar No. 173070 JSnell@perkinscoie.com Sunita Bali, Bar No. 274108 SBali@perkinscoie.com Perkins Coie LLP 3150 Porter Drive Palo Alto, CA 94304 Telephone: 650-838-4300 Facsimile: 650-838-4350 Attorneys for Petitioners Facebook, Inc., Instagram, LLC, and Twitter, Inc. TABLE OF CONTENTS INTRODUCTION.wesssssssssssssssssssssssssseesssssssasossssnnnsssenessansessassssssssseeee 1 STATEMENT.........cccccsssssesesseeseesecseeeesseceeseesseeasseseesseeseseacsesssssesessnesseusneasesens 2 SUMMARYOF ARGUMENT........cccescsesessessseeseseneesesrsesssesseeessetseeneeneeees 5 ARGUMENT....sssssssssssssscccssssssseccessssnssesessnrseseeseesnnseensnseeessneessesseseseenaneeseeee 7 A. Federal law prohibits the Providers from complying with defendants’ SUBPOENAS.........:.cceseseseseeeteeteseteeeetenseeenes 7 B. Evenif defendants’ constitutional arguments were correct, the supremacy clause would prohibit enforcement of the SUDPOENAS............. se cceceseteeeeseerereseeeesenennenes 9 C. Hammonforecloses defendants’ constitutional claims......... 13 The SCA’s disclosure prohibition does not violate defendants’ due process rights .........ccsccsceseeessseesssteeeeseneees 18 l. The due process clause does not require that criminal defendants have access to the same 2. The due process clause does not provide a right of discovery to the content of electronic COMMUNICATIONS00... ieesessseeesseeeeeeceesseeecsseeseeeeessneesees 21 a. Defendants have not shownthat discovery from the Providers is necessary to protect their INTCTESTS ......eeeeeeeeeeseeeereaescesteeaeeeaceetanerens 22 (i) Defendants already have much of Lee’s communications content, and they can obtain additional content directly from Lee ......eeeeeeseneeeeees 22 (ii) Defendants can obtain Rice’s information from the People................ 25 (iii) Defendants can subpoena non- content information anduse the results to identify additional sources Of EVIdENCE.........eeeeeeeeseeteees 26 b. Defendants overlook the important privacy interests that the SCA protects........... 28 E. Defendants’ other constitutional arguments lack merit........ 30 1, The compulsory process Clause ...........csccceeeseeeswel 2. The confrontation ClauSe............:::cccsesesesrseseerenseesaeees 34 3. The right to counsel ......ceecece eesseeeesseetseseerenseseaees 35 CONCLUSION.......cccccssssessseseceseeceeseneecesesseseeessnaeseecseesnsesseeesecsssnasaussssesegs 35 -ii- TABLE OF AUTHORITIES CASES Alvarado vy. Superior Court (2000) 23 Cal.4th 1121... ccceeesssecseeeseeeesceeeessecssssscssesessesenevsssesssennees 16 Bourhis v. Lord (2013) 56 Cal.4th 320oeeessccesssersesseessecssseessesssseesesesasesescnseeseaees‘17 Boyd v. United States (1886) 116 USS. 616oesvaceacaeeaucaeeeaeeeauscasensesasseeeesatseesaes 29 Brady v. Maryland (1963) 373 U.S. 83 v..csecccessseseesseceeessecesssssesnscnssesseenseessecsectsasssseeeaneees 25 Braun v. Primary Distributor Doe No. 1 (N.D.Cal. Dec. 6, 2012, No. C 12-586 MEJ) 2012 WL 6087179 ooo eecesssccccessesssensecssneceseeenaeessessesscassnssceseeeeccesesassersnsesesseeesaesensae® 27 Davis v. Alaska (1974) 415 U.S. 308 ooeeeceesescersseesseeseseessesseeeseesereensees sesteeseseneesesnes 34 Delaware v. Fensterer (1985) 474 US. I5 pecueseseueeaeeauegeeceseaeecaereeeesneenaneaneeesereee@eenennOERen een een aes 34 Dendrite Int’l, Inc v Doe (N.J.Super.Ct.App.Div. 2001) 775 A.2d 756 ..cscsssssseeesetereeetertenersees 21 DMV vy. Superior Court (2002) 100 Cal.App.4th 363 oo... cececssseneeesseeresteeeeeteteeseneeseneeses eeeenee 11 Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203 ......ccessceeseceessseenessseensneeseesesenseneens passim General Dynamics Corp. v. United States (2011) 131 S.Ct. 1900.eeeecsesceseeseseseesssenseeeesesnssaseecseneneneesesnenessens 12 Hilton v. South Carolina Public Railways Comm’n (1991) 502 U.S. 197 cee eceseeeesseseesceeesssssesssesseeeneeseeneesaseseenenenneseeseenes 17 Holmes v South Carolina (2006) 547 U.S. 319 iesccsesseesssssesecesseseneeseessessesnssseersecneestereesens 33, 34 Jencks v. United States (1957) 353 U.S. 657 oe ecessesssssssessesscscseneseeessesesseeeessenessersenesseeeeneteretses 12 Juror No. One v. Superior Court (2012) 206 Cal.App.4th 854 oo. cccecessssssesseseeseeerseeeseeteeasesees 23, 24, 27 Kling v. Superior Court (2010) 50 Cal4th 1068 oo... ceecccccseteccseesecessecsaccssesessersassaseessaseresesenesees 26 Kyles v. Whitley (1995) 514 U.S. 419ceeeeeeeseseesesneeensssesecessravsesssecssesseseseeneeseneeaes 25 Liberty Media Holdings, LLC v. Letyagin (D.Nev. Aug. 1, 2012, No. 2:12-cv-00923-LRH-GWF) 2012 WL 3135671oc ccccescetcecsnesseeceeeeeeseeeeseseecesssesseesseessecsseeseseeeeeseenes 27 Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922 oo.eeeeccscceseeseenceeeeestesseesesseesessuenenssesseenecseasessscnsenses 10 Mathews v. Eldridge . (1976) 424 U.S. 319ee esceseeeesecseseserssesssuseesseecseeeeseeeeseeesssssnenenees 21,22 Medinav. California . (1992) 505 U.S. 437 ve eeeesseseeessesetsesesstsnsceseeeesaeeessenssesnnesecneesersneesseaes 21 Montejo v. Louisiana sestesesesecsesssesssssesssssssessessensseeets 35 Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 oo. eesesesesseseessssessvecessesseseeseeesessesncseosererseesensneees 17 Negro v. Superior Court (2015) 230 Cal.App.4th 879 oi cicccssescsessersscsnssesensssrereesseteerseteaes 9, 24 O’Grady v. Superior Court . (2006) 139 Cal.App.4th 1423 ooo. ceecssssssesseesseesnesenseteeseens 9, 23, 28, 29 Olszewski v. Scripps Health (2003) 30 Cal.4th 798eccescessessecssescsseeseneeeneeeees daveneeeaeeeeenesneeesetaes 9 Patterson v. New York (1977) 432 U.S. 197 ..eeeeeescceesseescsssscrssscessaeseecseesssssessessenesesseeseeasenneaees 21 Pennsylvania v. Ritchie (1986) 480 U.S. 39 occeeeseeseeeseesessesstseseeseseesssesrsensennenesetes 31, 32, 34 People v. Clark . (2011) 52 Cal.4th 856... eceeesscsssscsesssecseneecsesssessesesseseseesnens 16, 31, 32 -ii- People v. Farley (2009) 46 Cal4th 1053 ooo. eeecessseesssnsesseeeseeesssessesesssesessneseeeans 12, 13 People v. Gurule (2002) 28 Cal.4th 557 occeessessseecssssessesseeersseeseseeesesssssessesseseeesnenes 16 People v. Hammon (1997) 15 Cal.4th L117eecesesssscsseseeseeesseeesesersseesessseeneesaeees passim People v. Lucas (2014) 60 Cal.4th 153 ceeeeesseesssesesesessessesseseeeesessesenseerenenasneseeneey 25 People v. Maciel (2013) 57 Cal.4th 482 oo... cececsssesesensessenseesessessesesssesessesesessesssessesessens 5 People v. Martinez (2009) 47 Cal4th 399oecccesesessssseeecsessseeeseeeseneeeenersenesseeaseereneeeee 16 People v. Prince (2007) 40 Cal4th 1179ceccscessesssesseereesennesseeneeestensecenetaens 16, 31, 32 - People v. Salazar (2005) 35 Cal4th 1031eecescsesseeeeeeeseeeeeseeseeeerenees seseeseeseeteneenenees 25 People v. Sutter (1982) 134 Cal.App.3d 806 oo... ccsecesssenerseeeseseesseteneessereteeseeeesiessseenes 19 People v. Valdez (2011) 201 Cal.App.4th 1429 oocessecesesesseseereneneenerecseeressereneeees 24 People v. Valdez (2012) 55 CalAth 82esesecssssesessesesessseeeseesseseeneneeresseneserssensenserenenens 5 People v. Webb | (1993) 6 Cal.4th 494 oo... ccececesecsteneseesssesestsnsteseessneessesneassesneseenensentees 32 People v. Williams (2013) 58 Cal4th 197escecsessecereseseesseessesseeeeseenetereeseesssessernsssesees 4,5 Riley v. California (2014) 134 S.Ct. 2473ee eecesesessssescnsessseeseessessesessenesecetessererseeaesenees 7,29 Rubio v. Superior Court (1988) 202 Cal.App.3d 1343 ...ssesceesseseseseeesesesesseeseseeeeeeeees LL - ill - Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal4th 489ooeecseesesscrssessessessesessssetessesseeseneesseenenees 17 Taylor v. Illinois (1988) 484 U.S. 400 oeeeeseeessseeecessesetevscnssessssseeevsseenenesseseeeseeneeees 33 United States v. Forrester (9th Cir. 2007) 512 F.3d 500 oo.ee eeeeeeseseseeessessessesesseensesseeeeeesesarseenens 8 United States v. Hanna (6th Cir. 2011) 661 F.3d 271 oeeccseseseesseseesecsesseeseesseesseeesseeseeeenes 8 United States v. Jones (2012) 132 S.Ct. 945ee eceescseseeneeececeseesesseseseseesssseessenseeesserseseeesseenesnees 29 United States v. Lea (7th Cir. 2001) 249 F.3d 632eeeesccsssssessesseseeerseeseesssenssessesseserseeeses 33 United States v. Nixon (1974) 418 U.S. 683 oeeeeceeceeereessensetsseesesesenssnesseseeesesssenessesseseesenees 26 United States v. Pierce (2d Cir. 2015) 785 F.3d 832 ..csscssssesssssscsesessecseneesesecsesnesseeteeenens 22, 26 United States v. Scheffer (1998) 523 U.S. 303 oe eeceeeeetseesseesecsessenessseesnenssessesessesessssenaseaenerataes 34 United States v. Tucker (S.D.N.Y. 2008) 249 F.R.D. 58 oo. eeccccssssssesseseeseeseeesereseeneneesNevevseeeens 19 United States v. Turkish (2d Cir. 1980) 623 F.2d 769 o.iccecssssseceeeeeeeeseneneesenessnenneestenecenenessenes 19 United States v. Valenzuela-Bernal (1982) 458 U.S. 858 occceeeeeesssseesssesseseeseessenesseersssessesserssenesasenesnsas 33 United States v. Warshak (6th Cir. 2010) 631 F.3d 266 occeesesessseseceseseeseesseecenssessrssesseteseeeees 8 Valdez v. Winans (10th Cir. 1984) 738 F.2d 1087 oo. cesesseeeeeseseteeeeeeeneseeerseeteesstensens 33 Wardius v. Oregon (1973) 412 U.S. 470 woe ecceeteesereteeeesereneesSaeueceesceaceaeeceseneeseesaeeas 4, 18, 19 -iv- Weatherford v. Bursey (1977) 429 U.S. 545 oo. ececeesssesceneeesererseeseeseessecsessasseeseanseessenseeseesseseenes 31 STATUTES California Electronic Communications Privacy Act, Pen Code § 1546 et S€q.,......:seeecseesrseeteeecsresseeesessesseeseesees 19, 20, 29, 30 Stored Communications Act, 18 U.S.C. § 2701 et seq............sotseeeeseensaenanstensaescneneesenesesseersaessoneas passim 18 U.S.C. § 793(d) .ccesccescccssececesesesersecssessesesvscssscssssssecseeenssessesseenessessesaseraes 12 18 U.S.C. § 2510(8) ..ccccccccssssscsseessceteeseesseeseesesssescesensssnesssaeseeeeassasaesaseesseeeses 7 18 U.S.C. §.2702(a)...:cccecccescssssssssseeseeseeensessssssssonsessecseesseseessseesneenesseeseseeges 11 18 U.S.C. § 2702(a)(1)....ecccesecseseteeseeeceeeeseesseeesasaseseessseeseeasesassesseseeeensesees 5,7 18 U.S.C. § 2702(D)(1)..---eessessssseessseessseesnseaseesssseessncesnersnncsnnenennnensanenscnees 8 18 U.S.C. § 2702(b)(3).....ceccccscececsecseceseeeeesseeesscsecseseesseeaseesseseeesessnssesseassrses 8 18 U.S.C. § 2702(b)(5).csecesseseeseesserees sevecacacaeavavsvsvavsussssessssseasscsaneseseseseneeseneas 8 18 U.S.C. § 2702(b)(6)-vreteniinnntanenenninnnninansinaienieniennit 8 18 U.S.C. § 2702(C)(6) .....ecccscseccesceesesecesseesensssecsseseesesresseseesetsessnenssnesaeeeensnes 27 18 U.S.C. § 2703(a)..cccsccsscssecesestsecesrecsseeeesesssssecssencesseeecseseeesseseenesessenseneesees 8 18 U.S.C. § 2703(D)(L)(B)occeseseceseecsesessessescsscsesenssseeseeessensesessenseaesecsseeneens 8 18 U.S.C. § 2703(C)...cceccsccessecsesseessssssesesseeessesssesesesseseesseentnens‘veseeeeaeeeenaees 27 18 U.S.C. § 2703(C)(2)... ee eesesesseesssseeteeeeteeseenssueesesesesesneacseseceesesesassesessensens 27 18 U.S.C. § 2703(d) sevsstesssssssseestsstnstintgatsannanansnniennennsenenaeene 27 18 US.C. § 2707(a). ..cccceccesseecsseceseeeesseescersesssenseasseseeessessesnesseseeyWesseeeeneetees 11 18 U.S.C. § 2707(€)...ccccccccssseseeseeeceensevsecescsseessnssesaeeesecsesseapennesseseesensesenengs 11 18 U.S.C. § 271104) ccecsecccsseesessseseeceeceereneeseesesscnesenssenseseeeseesenseeseessessssenesaesney 9 Evid. Code § 1010 et Seq.......cccsesssrcsscscssssssssssenesssesssessesseesnessnetarensenseens 15 Evid. Code § 1410...eeeessessetsecccssrecesscssesensecesessessessneesseaseseaeesnenseeney 24 Evid. Code § 142] vecccesssessssssssesssssessseessseeneeeseesessssusesusesseessecssearecsseccsseesses 24 Pen. Code § 1054.1(c) sssssssssscsssesssssssssssssssssseessssssstsssssisstesissssssvssssssseneeseee 25 Pen. Code § 1054.1)... cceccesssccesteresecssecsescsssseeseeecseessesseesssnsesseseessesees 25 Pen. Code § 133] vicscsscssssssssssesseesesssessseseesesesssesesesaeereateaneneseeeeeneneneeeeneensees 24 Pen. Code § 1524 ivccecccssssssessssssssssecsseessessscssecsssssssecsucesueesnsceecsseceeeennseesnesents 19 CONSTITUTIONAL PROVISIONS Cal. Const., art. 1, § 28, subd. (b), pars. (1) .cescssscssesssesssecsseesteeseeeneesseeesveeeee 26 Cal. Const., art. 1, § 28, subd. (b), pars. (4)...ecesseeeseeseensnreeseeesseees. 26 U.S. Const., 4th Amend,.0.... cee ceeeeceesseecsseessessesteessneeneesnessseeseneessennees passim US. Const., Sth Amen]......ceeecsscsseessetsssesseseeessesassresenes 1, 10, 13, 14, 30 ULS. Const., 6th Amend, .......ccceceescesessseessescneesserecseeessneesseeessenerssenees passim U.S. Const., 14th Amend. wuSesesesesssacsecceceeesesensecseeseseseeeessonese 10, 13 U.S. Const, art. VI. csccscsssseessssssenssseiteessssssssnennsoseeneeenneenseeeneeenetne 1, 9, 10 RULES . Fed.R.Crim.P. 41(b) ...c.cccceccesccsccssscceeeeeescessesssecssssncsesseenensesessreseessnereneseneeaes 19 OTHER AUTHORITIES H.R.Rep. No. 99-647, 2d Sess. (1986).....csecssssesesseesesssssseseteeneessseessearereees 28 Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It (2004) 72 Geo.Wash. L.Rev. 1208 .......ccccessscccesseesseccscessscescessuesssessessaeersseesseesseneessaeseaseaseseenges 28 Sen.Rep. No. 99-541, 2d Sess. (1986) .....scccseesesesseennseetetererseeeseeneseneens 29 -Vi- INTRODUCTION The real parties in interest (defendants below) argue that a state court adjudicating a criminal case mayissue an orderdirecting a third party to violate a federal statute. That argumentis foreclosed by the supremacy clause of the United States Constitution. (U.S. Const., art. VI.) The Court of Appeal correctly held that defendants are not entitled to the relief they seek, and this Court should affirm its judgment. | Deferidants have been charged with murder and attempted murder. They wishto examine the contents ofelectronic communications made by the victim and a witnessusing the services of Facebook, Instagram, and Twitter (collectively, “the Providers”). The trial court issued a subpoena directing the Providers to produce the requested content. The Court of Appeal correctly granted a writ of mandate because disclosure of that material would violate the federal Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq. Enacted by Congress to protect the privacy of persons using electronic communications services, the SCA generally prohibits providers from disclosing the contents of electronic communications. The statutory prohibition on disclosureis subject only to limited, narrow exceptions. While the SCA permits disclosure that is required by a searchwarrant, all parties agreethat it does not permit disclosure under a subpoena issued at the behest of a criminal defendant. Defendants argue that the SCA,as applied in this case, violates their rights under the Fifth and Sixth Amendmentsto the Constitution. That argumentis misdirected because those constitutional provisions confer rights against the state, not against the Providers.If indeed the Constitution makesit impossible for the People to prosecute defendants without giving them access to the material they seek, then the appropriate remedy would ~ be onedirectedat the People in the context of the criminal prosecution; it would not be an order compelling the Providers to violate the SCA.Ifa state creates a constitutional difficulty by bringing a state-law prosecution, it may notresolvethat difficulty by requiring a third party to engage ina violation of federal law. In any event, defendants’ constitutional arguments lack merit. This Court held nearly 20 years agothat there is no constitutional right to pretrial discovery. (People v. Hammon(1997) 15 Cal.4th 1 117.) The Court has repeatedly reaffirmed that decision.It is controlling here, and defendants have shownnojustification for overruling it. Even if this Court were to considerthe issue on a blank slate, it should reject defendants’ constitutional arguments. The Constitution neither requires that criminal defendants have accessto the sameinvestigative tools as the government, nor doesit create a rightto pretrial discovery from third parties. Although defendants argue that the information they seek is necessary to their defense, they have not yet attempted to pursue the many available alternatives for obtaining the sameinformation. Defendantsalso ignore the importantprivacyinterests in electronic communications. Those interests have been recognized by the United States Supreme Court and the California Legislature, and they weigh heavily against recognizing the novel discovery right that defendants seek. This Court should affirm the judgment of the Court of Appeal. STATEMENT On June 24, 2013, Joaquin Rice waskilled and B.K., a minor, was woundedin a drive-by shooting in San Francisco. (Facebook, Inc.v. Superior Court (2015) 240 Cal.App.4th 203, 209.) Defendants, Derrick Hunter and Lee Sullivan, are charged with the murder of Rice and the attempted murder of B.K.(/d. at 210.) A key witnessattrial is likely to be Renasha Lee, Sullivan’s former girlfriend. Shortly after the shooting, the police stopped the vehicle used in the shooting and foundthat it was driven by Lee, whostated that defendants had borrowedhercar before the shooting. (/d. at 209.) Defendants anticipate that the People will also present the testimony of a gang expert, who will use social-media statements to show that the case was gang related. (Defts.’ Br. at pp. 8-9.) Defendants wish to impeach Lee by showing that she is biased and was motivated by jealousy, and they also seek to impeach the anticipated testimony of the government’s expert. (Defts.’ Br. at pp. 4-5.) To that end, defendants issued pretrial subpoenasto the Providers seeking the content of electronic communications belonging to Rice and Lee. Specifically, Sullivan issued subpoenas to Facebook and Instagram seeking a variety of content including photographs, videos, messages, and other communications, without limitation by date. (1 Appendix of Exhibits (“AE”) 12-18.)' Sullivan’s subpoena to Twitter sought similar information, but only as to Lee. (1 AE 53-56.) Hunter subpoenaed only Twitter, and sought information including content associated with Lee’s account from January 1, 2013 to the present. (1 AE 210-214.) The Providers moved to quash the subpoenas, arguing that the SCA prohibited them from disclosing communications content. (1 AE 1-8; LAE - 42-49.) Defendants opposed the motions, arguing they have broad constitutional rights to pretrial discovery that should overcome the SCA.(1 AE 96-102.) The trial court denied the motions to quash, holding that the SCA’s prohibitions on disclosure violated defendants’ constitutional rights. The court ordered the Providers to produceall responsive recordsto the Court for in camera review.(1 AE 264-281.) ' The Appendix of Exhibits was submitted to the Court of Appeal, First Appellate District, in support of the Providers’ Petition for Writ of Mandate. The Providers petitioned for a writ of mandate in the Court of Appeal, First Appellate District. (Facebook, 240 Cal.App.4th at p. 211.) The Court of Appeal stayed the superior court’s order and subsequently issued an order to show cause whythe writ should not be granted. (/d.) Thereafter, the Court of Appeal directedthe trial court to vacate its prior order and enter a new order quashing the subpoenas. (/d. at 208.) In support of that order, the Court of Appeal recognized that the SCA prohibits the Providers from disclosing communications content to defendants in response to a subpoena,andthatit is “undisputed that the materials Defendants seek here are subject to the SCA’s protections.” (/d.at 213.) It further held that “[t]he consistent and clear teaching of both the United States Supreme Court and California Supreme Court jurisprudence is that a criminal defendant’s right to pretrial discovery is limited, and lacks any solid constitutional foundation.” (Jd. at 225.) In reaching its conclusion, the Court of Appeal carefully analyzed each constitutional right asserted by defendants. As to the Sixth Amendment, the court recognized that this Court “has repeatedly declined to recognize a Sixth Amendmentright to defense pretrial discovery of otherwise privileged or confidential information.” (/d. at 217.) The court concludedthat “there is little, if any, support for Defendants’ claim that the confrontation clause of the Sixth Amendment mandates disclosure of otherwise privileged information for purposes of a defendant’s pretrial investigation . . . [and] even less support for Defendants’ contentionthat the compulsory process clause of the Sixth Amendmentseparately authorizes the trial court’s order here.” (/d. at 219.) As to defendants’ due process argument, the court reiterated the United States Supreme Court’s observation that “[t]he Due Process clause haslittle to say regarding the amountof discovery which the parties must be afforded.’” Ud. at 220-21 [quoting Wardiusv. Oregon (1973) 412 U.S. 470, 474]; see also Peoplev. Williams (2013) 58 Cal.4th 197, 259; Peoplev. Maciel, (2013) 57 Cal.4th 482, 508; People v. Valdez (2012) 55 Cal.4th 82, 109-110.) The court also recognized that defendants could seek the information from other sources, including the government, and rejected defendants’ argumentthat the SCA was unconstitutionally one-sided because “a variety of investigative and evidence collection procedures are routinely available to governmental agencies that are not provided to a criminal defendant.” (/d. at 221-22.) Finally, the Court of Appeal rejected defendants’ argumentthat in camerareview ofthe records by the trial court provides adequate privacy protection. The court stated that such a “nonadversarial ex parte processis ill-suited to adjudication of contested issues of privilege,” becausethetrial court likely would not “have any context to make a meaningful evaluation pretrial, and in most instances would not have the benefit of an adversarial response.”(/d, at 223-24.) Indeed, “the court may not even be cognizant of objections to production, and the level of in camera scrutiny required,” therefore “if pretrial disclosure is permitted, a seriousrisk arises that privileged material will be disclosed unnecessarily.” (Jd. at 224.) SUMMARY OF ARGUMENT The Court of Appeal correctly granted a writ of mandatedirecting the trial court to quash the subpoenas. Asthe Court of Appeal recognized, the SCA prohibits the disclosure of the communications content that defendants seek to obtain. Specifically, - thestatute makesit unlawful for a provider of an electronic communication service to “divulge to any person orentity the contents of a communication while in electronic storage by that service.” (18 U.S.C. § 2702(a)(1).) Although the SCA contains some exceptions, none of those exceptions would apply to a disclosure under the subpoenas sought by defendants. Here, as in the Court of Appeal, there is no dispute that enforcing the subpoena would require the Providers to violate the SCA. Defendants instead ask this Court to declare the SCA unconstitutional as applied to this case. There is no basis for taking that drastic step, however, because the constitutional provisions on which defendants rely govern the conductofthe state, not the Providers. Whatever constitutional issues mayarise as a result of the prosecution of defendants, the options for resolving those issues areleft to the state in thefirst instance, and they do not include ordering a third party to violate a federal statute. That step is prohibited by the supremacyclause. | If this Court does consider defendants’ constitutional arguments,it should reject them. This Court held in People v. Hammon (1997) 15 Cal.4th 1117 that there is no constitutional right to pretrial discovery. That case involved the psychotherapist-patient privilege, but the Court’s reasoning wasnotlimited to that context, and the Court has repeatedly reaffirmed Hammon andappliedit in other contexts. Defendants have presented no justification for overruling Hammon. Evensetting aside Hammon, defendants’ arguments fail because they rest on the erroneous premise that a criminal defendant must have the same tools for obtaining evidenceasare available to the government. Neither the United States Supreme Court nor this Court have everheld that, and with good reason. The government may obtain search warrantsto conduct physical searches and wiretaps, but that does not meanthat criminal defendants mustbe able to do the same thing simply by issuing a subpoena. The policy reflected in the SCAis that searchesof stored communications content should be treated the same way. Defendants arguethat access to the content they seek is necessary . for their defense. However, that argument is undermined bytheirfailure to pursue the manyoptionsavailable to them for obtaining the same contentin a mannerconsistent with the SCA. They could, for example, seek to obtain the content from the parties to the communication or from the People. Alternatively, they could seek non-content information from the Providers (invoking the provisions of the SCA that permit such information to be disclosed more readily than content), and they could use that information to develop additional evidence. Defendants’ claim of a due process entitlement to the communications contentat issue is also unpersuasive becauseit gives short shrift to the important privacy interests that the SCA protects. The SCA allows disclosure if directed by a warrant, which requires a judicial finding ofprobable cause. A pretrial criminal defense subpoena, by contrast, often issues with no review at all. Defendants point out that social media has become an important means of communication, but as the United States Supreme Court has observed, the ubiquity of modern technology should not lessen the privacy protections afforded to such communications. (See Riley v. California (2014) 134 S.Ct. 2473.) Finally, defendants invoke various other provisions ofthe Constitution. Their arguments are largely derivative of their flawed due process arguments, and they founder because no court has recognized a right to third-party discovery in these circumstances. This Court should not take that step for the first time where doing so would require invalidating an Act of Congress. | ARGUMENT A. Federal law prohibits the Providers from complying with defendants’ subpoenas The SCAis a federal criminal statute that makes it unlawful for a provider of an electronic communicationservice to “divulge to any person or entity the contents of a communication while in electronic storage by that service.” (18 U.S.C. § 2702(a)(1).) The statute defines “contents” to include “any information concerning the substance, purport, or meaning” of an electronic communication. (18 U.S.C. § 2510(8).) Depending on the circumstances, that broad definition could encompass such materials as the text of an email, message, or tweet, or the images or audio in a photograph, video, or sound recording. The SCA enumerates only a few, narrow exceptions to the prohibition on disclosing the contents of a communication. Someofthe exceptions permit a provider to disclose content when doingsois necessary to providing the service. (See, e.g., 18 U.S.C. § 2702(b)(1), (5).) Others allow a providerto disclose content with the express consentofthe user,or in the case of “an emergency involving danger of death or serious physical injury.” (See, e.g., 18 U.S.C. § 2702(b)(3), (6).) Significantly, the statutory exceptions do not include responding to a subpoenaissuedat the behest of a criminal defendant. Instead, compelled disclosure of communications content can take place only in response to a search warrant “issued using the procedures described in the Federal Rules of Criminal Procedure(or, in the case of a State court, issued using state warrant procedures).” (18 U.S.C. § 2703(a).) For certain categories of content, the statute permits a “governmental entity” to requiredisclosure under an administrative subpoenaor court order obtained by the governmental entity. (18 U.S.C. § 2703(b)(1)(B).) Courts have held, however, that because customers enjoy a reasonable expectation ofprivacy in the contentoftheir electronic communications, a warrant based on probable causeis required in that context as well. (See, e.g., United States v. Warshak (6th Cir. 2010) 631 F.3d 266, 288; accord United Statesv. Hanna (6th Cir. 2011) 661 F.3d 271, 287, fn.4; see also United Statesv. Forrester (9th Cir. 2007) 512 F.3d 500, 512 [likening email content to the contents of physical mail, and noting that “the contents [of email] may deserve Fourth Amendment protection”].) Andin any event, a disclosure under a subpoenaobtained by a criminal defendantis not a disclosure required by a “governmental entity.” (See 18 U.S.C. § 2711(4) [defining “governmentalentity”’].) Whenthe SCAprohibits a disclosure, it preempts any provision of state law that would require that disclosure. (U.S. Const., art. VI; Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815 [explaining that a state law conflicts with federal law, and is therefore preempted, “whereit is impossible for a private party to comply with both state and federal requirements”].) For that reason, “California’s discovery laws cannot be enforced in a way that compels [a provider] to make disclosures violating the [SCA].” (Negro v. Superior Court (2015) 230 Cal.App.4th 879, 888-89; see O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1442 [holding that it would be an “unlawful act” for a service provider to comply with a subpoenaseeking the content of a user’s communications, even if required to do so by a court order].) In the circumstancesof this case, the SCA contains no exception that would permit the Providers to comply with the subpoenas by disclosing the contents of communications to defendants. Accordingly, as the Court of Appeal recognized,“[i]it is undisputed that the materials Defendants seek here are subject to the SCA’s protections.” (Facebook, 240 Cal.App.4th at p. 213.) In this Court, defendants do not take issue with that proposition. (Defts.’ Br. at p. 10 [recognizing that the SCA does not provide “parallel access for criminal defendants”to “social media records’’].) B. Even if defendants’ constitutional arguments were correct, the supremacyclause would prohibit enforcement of the subpoenas Recognizing that the SCA prohibits the disclosures they seek, defendants argue that the Constitution entitles them to have the subpoenas enforced—in other words, that the SCA is unconstitutional as applied in this case. As explained below, defendants’ constitutional arguments lack merit. But even if those arguments werevalid, they would not support the remedy defendants seek.” The provisions of the Constitution on which defendants rely include the due process clause, the compulsory process clause, and other clauses of the Fifth and Sixth Amendmentsthat govern the actionsofthe state in criminal prosecutions. Those provisions do not impose obligations on the providers, whoare private parties. (Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922, 924 [explaining that the Constitution “can be violated only by conduct that may be fairly characterized as ‘state action’”’].) The due process clause, for example, provides, “nor shall any State deprive any personoflife, liberty, or property, without due process of law.” (U.S. Const., 14th Amend., § I [emphasis added].) If defendants were correct that it would violate due process to subject them to criminal prosecution without affording them accessto the records they seek, then the appropriate remedy would be to prevent the state from subjecting defendants to criminal prosecution in those circumstances—whetherby setting aside the indictment, by limiting the evidence the People can present, or by developing another remedy within the frameworkofthe criminal prosecution. It would notbe to order the Providersto violate federal law. Underthe supremacyclause, a state court lacks authority to issue such an order to the Providers. (See U.S. Const., art. VI.) Defendants say that “California courts have routinely granted pretrial access to evidenceto criminal defendants under the due process clause even in the face of conflicting statutes and constitutional * In their petition, defendants described thefirst issue presented for review as “whether criminal defendants are constitutionally entitled to pretrial access to social media records.” (Petn. for Rev. at p. 2.) Thatissue necessarily encompasses the question whether ordering access to those records would be an appropriate remedy for any constitutionalviolation defendants have identified. -10- provisions.” (Defts.’ Br. at p. 18.) They rely on cases in which courts held that the state government wasrequired to disclose informationin its possession to a criminal defendant (e.g., DMV v. Superior Court (2002) 100 Cal.App.4th 363), or that a defendant’s due processrights could limit a state-law evidentiary privilege (e.g., Rubio v. Superior Court (1988) 202 Cal.App.3d 1343). However, they cite no case in which a state court ordered a private party to violate afederal statute. So far as we are aware, noneexists. Toillustrate the flaw in defendants’ position, consider the predicamentthat the Providers wouldbe inif the trial court enforced the subpoenasat issue here.If the Providers wereto comply with the subpoenas, they would risk being claimed to have violated 18 U.S.C. § 2702(a) because, as explained above,that provision contains no exception permitting disclosure in response to a subpoenaissued by a criminal defendant. Providers could therefore be required to defend against alleged liability under 18 U.S.C. § 2707(a)in a civil action brought by any person aggrieved by the disclosure. While the SCA creates a defense for good-faith reliance on a court order, courts have not ruled on the applicability of that defense in these circumstances, where the order does not comply with the requirementsofthe statute. (18 U.S.C. § 2707(e).) In short, the trial court would havecreated an insoluble dilemma. On the one hand,it would be the height of unfairness to allow the Providersto face potential liability under the SCA for complying with the court’s order. On the other hand, the only alternative would beto say that a state court somehowhasthe authority to license a violation of a federal statute—a proposition thatplainly contradicts the supremacyclause. | Whena federal statute such as the SCA prohibits the disclosure of information, the appropriate courseis that followed in the analogous context of cases involving classified information. Just as the SCA prohibits l- the Providers from disclosing the content of the communications sought by the defendants in this case, federal statutes also prohibit those with access to classified information from disclosing it without appropriate authorization. (See, e.g., 18 U.S.C. § 793(d).) In this regard, the United States Supreme Court has held that, in a criminal case, “[i]f the | Governmentrefuses to provide state-secret information that the accused reasonablyasserts is necessary to his defense, the prosecution must be dismissed.” (General Dynamics Corp. v. United States (2011) 131 S.Ct. 1900, 1906; see Jencks v. United States (1957) 353 U.S. 657, 672.) Of course, in a federal prosecution, if the government deemsthe prosecution sufficiently important, it may chooseto authorize the release ofclassified information. A state, however, does not havethatoption. If the disclosure of classified information is necessary to preserve a defendant’s right to a fair trial in a state criminal case, a state court may not defy federal law and order the information released. Rather, it must set aside the indictment. This Court recognized those principles in People v. Farley (2009) 46 Cal.4th 1053. In that case, Farley had been found guilty of first-degree murder, and at the penalty phaseofhistrial, he sought “access to data concerning his past employment”as a cryptologic technician in the Navy and as a defense contractor working on top-secret projects, which he intended to introduce as mitigating evidence. (/d. at p. 1077-79, 1124-27.) Amongotherthings, Farley sought to introduce the testimony of Kent Wells, a Navy personnel security specialist. (/d. at 1126.) The trial court ruled, however,“that it could not order Wells to disclose classified information, because doing so could subject him to criminal prosecution.” (Ibid.) Farley was sentenced to death. On appeal, Farley challenged thetrial court’s exclusion ofclassified evidence, but neither Farley nor this Court suggested that “there waserror. . . in the trial court’s rulings concerning the discovery of classified information,” and neither Farley nor this Court -12- questioned thecorrectnessofthe trial court’s determination that it could not compel Wells to disclose information protected by a federal statute. (/bid.) Ultimately, the Court affirmed the sentence after determining that the information Farley sought to introduce wasnot relevant. (/d. at 1128-29.) The approach employed in Farley is appropriate here. The Fifth and Sixth Amendments,as applied to the state through the Fourteenth Amendment,limit the authority of the state in the conductofa criminal prosecution. They do not, however, empowera state court to disregard the supremacy offederal law by ordering the Providersto violate the SCA. Thus, even if the People’s decision to prosecute defendants in these circumstanceshas givenrise to a constitutionalviolation, the available remedies for that violation would not include enforcing the trial court’s subpoenas (whetherissued beforetrial or during trial). Because that is the only remedy defendants have sought, the Court of Appeal correctly rejected it and ordered the subpoenas quashed. Cc. Hammonforecloses defendants’ constitutional claims Evenifthe trial court had authority to enforce the subpoenas against the Providers, it would be inappropriate for it to do so. Defendants’ claim that the Constitution gives them a right to conductpretrial discovery—a right that overrides a contrary statute—is flatly contrary to this Court’s decision People v. Hammon (1997) 15 Cal.4th 1117. Defendants acknowledge as much but respondby asking this Court to confine Hammon to its facts or, failing that, to overrule the decision. This Court should decline the invitation. | In Hammon,this Court considered whether a defendant accused of committing lewd acts on a minor could compel the victim’s psychotherapists to disclose records aboutthe victim. The defendant claimed that access to the records was necessary to allow him to cross- examine the victim, but the trial court quashed a subpoenaonthe basis of -13- the psychotherapist-patientprivilege, and it declined to review the records in camera. This Court affirmed. After surveying United States Supreme Court cases applying the due process clause and the Sixth Amendment,the Court rejected the defendant’s claim of“a right to discover privileged psychiatric information before trial,” adding that it saw no “adequate justification for taking such a long step in a direction the United States Supreme Court has not gone.” (Hammon,supra, 15 Cal.4th at p. 1127.) The Court identified “a persuasive reason” not to recognize sucha right, namely, that “[w]hen a defendant proposes to impeach critical prosecution witness with questions that call for privileged information, the trial court maybe called upon . . . to balance the defendant’s need for cross- examination andthe state policies the privilege is intendedto serve.” (Jbid.) But“[bJeforetrial,” the Court explained, “the court typically will not have sufficient information to conductthis inquiry; hence,if pretrial disclosure is permitted, a seriousrisk arises that privileged material will be disclosed unnecessarily.” ([bid. ) As the Court of Appeals correctly held, Hammonis controlling here. (Facebook, supra, 240 Cal.App.4th at p. 216.) Defendants issuedpretrial subpoenasto Providers, and federal law prohibits Providers from fully complying with those subpoenas. Defendants ask this Court to invalidate the SCA basedon constitutional rights arising under the Fifth and Sixth Amendments, presupposingthat those provisions create a constitutional right to pretrial discovery. Hammon establishes that they do not. And absent a constitutional right to pretrial discovery, there is no constitutional violation here. Defendants observe that the SCAis a statute, not “a traditional evidentiary privilege” like that at issue in Hammon.(Defts.’ Br. at p. 43.) Thatis true, but it does not help defendants’ argument. Manyprivileges— including the psychotherapist-patient privilege at issue in Hammon—are -14- themselves the product ofstatutes. (Evid. Code, § 1010 et seq.) Moreover, unlike a state-law evidentiary privilege that this Court has authority to interpret and limit, the SCA is a federal statute, and this Court may not recognize exceptionsto it. In addition, the SCA’s privacy protection is far broader than that of any limited privilege—it covers a/] communications content, including communications that may be independently privileged or immune from discovery for reasons unknowableto the court or the parties without the subscriber’s involvement. Defendants correctly point out that the SCAis not an absolute bar to the disclosure of communications content, as content can be obtained from the parties to the communication. (Defts.’ Br. at p. 43.) As explained in more detail below, while that observationis correct, defendants fail to draw the appropriate conclusion from it: requests for content should be directed to the subscriber, not the providers, and the parties, the subscriber, and the court can then resolve any privilege, privacy, or relevanceissues. Defendants suggest that Hammonshould be confinedto the specific context of the psychotherapist-patient privilege. (Defts.’ Br. at pp. 41-43.) But nothing in Hammonsuggests that the rule adopted by the Court was intended to be limitedto a particular type of privilege or even to privileges in general. Rather, the Court’s focus was on the threshold question whether a pretrial right to discovery exists at all. Defendants seize on the Court’s statement in Hammonthat it was “concerned exclusively with the records requested from the psychologist.” (Defts.’ Brief at p. 41 [quoting Hammon, supra, 15 Cal.4th at p. 1122].) Read in context, that language merely clarified that of the various subpoenasissued in the case—for high-school records, juvenile-court records, and psychotherapist records—only the subpoena for psychotherapist records remainedin dispute.It did not limit Hammon’s holding, which turned on an interpretation of the United States Constitution, not an assessmentofthe particular records at issue. -15- Defendants’ argument overlooks the many subsequentcases in which this Court has applied Hammonin circumstancesnotinvolving the psychotherapist-patientprivilege. (See, e.g., Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1135 [holding that the Confrontation Clause does not require pretrial disclosure of witness identities]; People v. Clark (2011) 52 Cal.4th 856, 983 [holding that there is no Sixth Amendmentviolation wherethe prosecution does not disclose a witness’s criminal conviction beforetrial]; People v. Martinez (2009) 47 Cal.4th 399, 454, fn.13 [holding the Sixth Amendmentdoes notrequire granting a pretrial discovery motion for juvenile records]; People v. Prince (2007) 40 Cal.4th 1179, 1234, fn.10 [to the extent defendant’s claim to pretrial discovery of an FBI database was based on the Sixth Amendment,it was on “weak footing”}; cf. People yv. Gurule (2002) 28 Cal.4th 557, 592-594 [affirming that defendantdid not have a pretrial right to discover records protected by both the psychotherapist-patient and attorney-client privileges].) Those cases confirm that Hammon cannotbelimited in the manner defendants suggest. Defendants argue that this Court should overrule Hammon,but they offer no persuasive reason for doing so. (Defts.’ Br. at pp. 37-41.) For example, defendants do not point to any subsequentdecision of the United States Supreme Court that has, in any way, undermined Hammon’s reasoning. Instead, they simply repeat arguments considered andrejected in Hammonitself. In particular, in arguing that pretrial disclosure would offer practical benefits, they ignore this Court’s warning that “if pretrial disclosure is permitted, a serious risk arises” that information “will be disclosed unnecessarily.” (Hammon, supra, 15 Cal.4th at p. 1 127.) Indeed, the facts ofHammonitself “illustrate the risk inherent in entertaining such pretrial requests.” (/bid.) There, the defendant’s admission attrial “largely invalidat[ed] the theory on which he had attempted tojustify pretrial disclosure of privileged information.” (Jbid.) In other words, while the -16- pretrial judge may be informed about the facts and circumstances of the discovery period, he or she cannot predict how thetrial will proceed: a witness may choosenotto testify, the case maysettle, or testimony may proceed in a fashion that obviates the need for communications content. Defendants’ arguments thus cannot overcomethe principles of stare decisis, which counsels in favor of adhering to Hammonand the many subsequent cases that have followedit. As this Court has recognized, “a court usually should follow prior judicial precedent even if the current court might have decided the issue differently if it had been the first to consider it.” (Bourhis v. Lord (2013) 56 Cal.4th 320, 327.) In other words, “a court should be reluctant to overrule precedent and should do so only for good reason.” (Ibid.) That rule applies with even greater force where,as here, “the legislature, in the public sphere, andcitizens, in the private realm, haveacted in reliance on a previous decision,for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.’” (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 504 [quoting Hilton v. South Carolina Public Railways Comm’n (1991) 502 U.S. 197, 202]; see also Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 296 [“This policy .. . is based on the assumptionthat certainty, predictability and stability in the law are the major objectives ofthe legal system;i.e., that parties should be able to regulate their conduct andenter into relationships with reasonable assurance of the governingrules of law.”] [internal quotation marks andcitations omitted].) Here, for example, the Providers have stated that, consistent with federal law, they will produce content only in responseto a valid search warrant based on -17- probable cause.’ Overruling Hammonand requiring the Providers to disclose communications content in response to a mere subpoena would disrupt these settled practices and expose people’s communicationsto unanticipated third parties. D. The SCA’s disclosure prohibition does not violate defendants’ dueprocessrights Evenif defendants’ due process arguments could provide a basis for enforcing a court orderdirecting the Providers to violate a federal statute, and evenif this Court had not already rejected defendants’ constitutional theories in Hammon,this Court shouldstill reject the proposition that the due processclause entitles a criminal defendant to discovery ofstored communications content. 1, The due process clause does not require that criminal defendants have access to the same investigatory resources as the government Defendants argue that due process requires “reciprocity between the prosecution andthe defense in pretrial discovery.” (Defts.’ Br. at p. 22.) They rely on Wardius v. Oregon (1973) 412 U.S. 470 and cases following it, but those cases are inapplicable here. In Wardius, the United States Supreme Court invalidated a state statute that required a defendantto disclose the namesof alibi witnesses but did not require the prosecution to disclose the namesofits witnesses. The Court held that “in the absence of a 3 See, e.g., Facebook, Informationfor Law Enforcement Authorities, www.facebook.com/safety/groups/law/guidelines [explaining that a warrant issued “upon a showingofprobable cause is required to compel the disclosure of the stored contents of any account”); Instagram, Information for Law Enforcement, available at help.instagram.com/494561080557017 [same]; Twitter, Guidelinesfor law enforcement, | support.twitter.com/articles/41949 [“Requests for the contents of communications(e.g., Tweets, Direct Messages, photos) require a valid search warrant or equivalent from an agency with proper jurisdiction over Twitter.”]. . - 18 - strong showingofstate interests to the contrary, discovery must be a two- waystreet.” (/d. at p. 475.) But the “discovery” contemplated in Wardius and the other cases cited by defendants involved only the disclosure of information already in the possession of the government. The Court did not hold that defendants must have the same investigatory powers for obtaining evidence that the government does. Contrary to the defendants’ argument, the due process clause does not give defendants a right to investigatory powers equal to thoseofthe government. Rather, criminal investigations are necessarily asymmetrical. (See United States v. Turkish (2d Cir. 1980) 623 F.2d 769, 774; People v. Sutter (1982) 134 Cal.App.3d 806, 834-35 [“[A] criminal proceeding is not ‘symmetrical’ as theprosecution and defense have different rules, powers and rights.”’].) To take one example, a search warrant is an investigative tool to which defendants have neverhadaccess.(See, e.g., Fed.R.Crim.P. 41(b) [permitting a judge to issue a warrant“at the request of a federal law enforcementofficer or an attorney for the government”].) Thatis true whetherthe search in question is a physical search, a wiretap, or a search of stored communications content, and the disparity between the tools available to the governmentand those available to defendants “does not offend the Constitution.” (United States v. Tucker (S.D.N.Y. 2008) 249 F.R.D. 58, 63.) . Ofcourse, there is good reason why searches may be conducted only under a warrant, and not under a subpoenaissued by a criminal defendant: the warrant requirement offers important protections for individual privacy. Before obtaining a warrant, the government must demonstrate to a neutral magistrate that probable cause exists. (U.S. Const., 4th Amend.; Pen. Code, §§ 1524, 1546.1(d).) The warrant must state with particularity the place to be searched and the property to be seized. (Pen. Code, § 1546.1(d)(1).) Courts may also impose ex ante searchrestrictions, require in camera -19- review, or appoint special masters to review responsive records before disclosure to the government. (Pen. Code, § 1546.1(d)(1)-(3).) Those requirements provide significantly more protection than pretrial subpoena. Defendants therefore err when they say that “[d]efense pretrial subpoenas of confidential records are subject to evenstricter judicial control than search warrants.” (Defts.’ Br. at p. 27.) A criminal defendant can issue a pretrial subpoena without any initial showing; a “good cause” review only occursif there is an objection to the subpoena. Asthe Court of Appeal correctly explained, if the provider does not act conscientiously to protectthe privacy interests ofits subscribers, there will be no privacy review atall. (Facebook, supra, 240 Cal.App.4th at p. 224.) Defendants’ position wouldlead to the “anomalousresult” that law enforcement must seek a warrant for content, but defendants could obtain the same data “simply by serving an ex parte subpoena duces tecum with no required notice to the subscriber or prosecuting authority—-and which may, or may not, be subject to meaningful judicial review.” (/bid.) Defendants implicitly concede that the procedure they envision would not require a showing of probablecause. Noting that 95 percent of criminalcases are resolved before trial, defendants argue that they have a _ constitutional right to obtain all content“that will shed light on a case”in orderto evaluate their position and negotiate effectively. (Defts.’ Br. at p. 32-34.) In other words, they contemplate a procedure through which they could obtain any information about a communications subscriber that might be used to give them leverage in negotiations with the prosecution. As testimony would haveyet to occur, the court would have no context through whichto evaluate the constitutional significance of the request against the subscriber’s privacy interest, particularly if the subscriber were not given a meaningful opportunity to participate. (Facebook, supra, 240 -20- Cal.App.4th at p. 225.) Defendants’ own arguments show just how thin “good cause” protection would be. If the Court were to accept defendants’ position, criminal defendants could routinely issue subpoenas to service providers to obtain the communications content of victims, witnesses, confidential informants, and law enforcementofficers, because all of that information could potentially increase their leverage in plea negotiations. Parties armed with access to private information could easily use it for improper purposes,at great cost to individual privacy and theintegrity of the judicial system. (See, e.g., Dendrite Int’l, Inc v Doe (N.J.Super.Ct.App.Div. 2001) 775 A.2d 756, 771 [noting that discovery of communications subscriber information could be used to “harass, intimidate, or silence” individuals].) 2. The dueprocess clause does not provide a right of discovery to the content of electronic communications The United States Supreme Court has held that a procedural rule in a criminal case is “not subject to proscription under the Due Process Clause unless it offends someprinciple ofjustice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Medinav. California (1992) 505 U.S. 437, 445 [quoting Patterson v. New York (1977) 432 U.S. 197, 201-02.) That standard, the Court has explained, is “far less intrusive” than the balancing test of Mathews v. Eldridge (1976) 424 U.S. 319. (Medina, supra, 505 U.S.at p. 446.) Defendants have notestablished that denying them right of access to third-party social media records in a criminal case offends such a principle of fundamentaljustice. It manifestly does not, any more than the due process clause condemnsthe statutes and rules that deny criminal defendants the authority to conduct physical searchesofthird parties in order to obtain evidence for their defense. Indeed, defendants cannotsatisfy even the less demandingtest of Mathews, which requires a court to balance “[flirst, the private interest that -21- will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal _ and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews, supra, 424 U.S.at p. 335.) While the private interest at issue here is significant, the other factors weigh heavily against recognizing the right the defendants seek. a. Defendants have not shownthat discovery from the Providers is necessary to protect their interests The value to defendants of enforcement ofthe subpoenasis limited because defendants have various options through whichto obtain the content they seek from sources other than the Providers. None ofthose options has been exhausted or even seriously attempted. The existence of those alternatives demonstrates that defendants’ due processclaim is prematureat best. (i) Defendants already have much of Lee’s communications content, and they can obtain - additional content directly from Lee Defendants claim they require additional communications content to impeach Lee by showingthat she is violent, angry, or jealous. (Defts.’ Br. ~ at p. 4.) But a review of the record showsthat defendants already have ample information that would serve that purpose.(See, e.g., 1 AE 15-18, 56, 161-174, 176-180.) Defendants do not explain what additional content they expectto find, or why it would add anything new to the case. (See United States v. Pierce (2d Cir. 2015) 785 F.3d 832, 841-842 [declining to consider a criminal defendant’s constitutional challenge to the SCA where defendant had access to some Facebookrecords and could only speculate -22- that additional exculpatory or relevant material might have been in the account].) | Nevertheless, if defendants desire additional content related to Lee’s accounts, they can issue a subpoenadirectly to her. Lee is notinhibited by the SCA; she has custody and control over the contents of her Facebook, Instagram, and Twitter accounts; and sheis in the best position to respond to a request for such content, including by asserting her constitutional and privacyrights if she so chooses. (See Juror No. Onev. Superior Court (2012) 206 Cal.App.4th 854, 864 [noting that the SCA’s protection would apply “only as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information”].) The proper way to obtain communications content is to seek discovery from “the ownerofthe data, not the bailee to whom it was entrusted.” (O'Grady, supra, 139 Cal.App.4th at 1447.) Upon receipt of the subpoena, Lee could usetools such as Facebook’s Download Your Information tool or Twitter’s Download Your Archivetool to collect her communications. (1 AE 20-23, 58-59.) Those tools provide a user-friendly and reliable way to gather account information, and they would allow Lee to producethe contentthat the Providers are prohibited from producing under the SCA. Defendants claim that this solution is unworkable because they are unable to locate Lee to serve her with a subpoena. (Defts.’ Br. at p. 4.) But there is no indication that defendants have exhaustedtheir efforts. (1 AE 107). More importantly, given defendants’ description of Leeasthe “sole witness who implicates Mr. Sullivan in the incident,”it is reasonable to infer that the People have been or will be in contact with her to make | arrangements for her appearance and testimonyattrial. (Defts.’ Br. at p. 3.) Thus, the court could simply direct the People to assist in serving the subpoena on defendants’ behalf. -23- If Lee ignores the subpoenaor refuses to comply, defendants can seek an order from thetrial court compelling her to comply. (See Juror Number One, supra, 206 Cal.App.4th at p. 864 [“If the court can compel Juror NumberOneto produce the information, it can likewise compel Juror Number Oneto consentto disclosure by Facebook.”]; Negro, supra, 230 Cal.App.4th at p. 889 [court may order consent on pain ofdiscovery sanctionsfor failure to comply].) If Lee ignoresthetrial court’s order, the court can hold her in contempt, and enforce the order when she appears to testify. (See Pen. Code, § 1331.) And of course, if she does not appear to testify, defendants will have no need for evidence with which to impeach her, | Additionally, defendants do not need content from the Providers for authentication purposes.Instead, they can authenticate content by the testimony ofthe person whoobtainedit, such as an investigator. (Peoplev. Valdez (2011) 201 Cal.App.4th 1429, 1435; see also Evid. Code, § 1410 [Norestriction on “the means by which a writing may be authenticated”); Evid. Code, § 1421 [Writing can be authenticated by its contents].) In any event, defendants do not appear to wantthe Providersto authenticate Lee’s records; they want the Providers to authenticate the identity of the person who authored Lee’s content in case she refuses to do so. However, Lee’s refusal would not render the records inadmissible. (Valdez, supra, 201 Cal.App.4th at p. 1435 [“The fact conflicting inferences can be drawn regarding authenticity goes to the document’s weight as evidence,notits admissibility”].) Moreover, the Providers are not parties to communications between subscribers, and they do not know whoactually authored such communications. The Providers operate online services and create accounts based on the information provided by the person signing up for those services. Thus, if a person opens and operates an accountas “John Doe,”or .~24- some other pseudonym,that is the information that will be associated with the account. Andofcourse, the Providers have no way of knowing the identity of the person that authored any particular content in the account: all they know is that a person logged into and used the account. Obtaining evidencedirectly from the Providers would therefore do nothing to authenticate the identity of the person responsible for creating the records. (ii) Defendants can obtain Rice’s information from the People Asthe Court ofAppeal recognized, defendants can obtain information about Rice from the People, who issued search warrants to Facebook and Instagram for content associated with Rice’s Facebook and Instagram accounts.’ (Facebook, supra, 240 Cal.App.4th at p. 221.) The People must produce any relevant or exculpatory evidencein their possession. (Pen. Code, § 1054.1(c), (e) [“The prosecuting attorney shall disclose to the defendantor his attorney . . [a]ll relevant real evidence seized as part of the investigation of the offenses charged” and “[a]ny exculpatory evidence”]; People'v. Lucas (2014) 60 Cal.4th 153, 221 [“The constitutional due process rights of a defendant may be implicated when he or she is denied access to favorable evidence in the prosecution’s possession.”]; Brady v. Maryland (1963) 373 U.S.83.) Indeed, the People have an obligation “to learn of any favorable evidence knownto the others acting on the government’s behalf” and to disclose that evidenceto the defendant. (People v. Salazar (2005) 35 Cal.4th 1031, 1042 [quoting Kyles v. Whitley (1995) 514 U.S. 419, 438].) Thus, defendants could have asked the trial court to compel the People to disclose the victim’s communications consistent with California and federal law, if the People hadnot already doneso. 4 Defendants did not issue a subpoenato Twitter seeking content associated with any accounts purportedly belonging to Rice: -25- Defendants argue that obtaining discovery from the People would be insufficient, noting that the People have “procure[d] some,butnotall, of Mr. Rice’s social media records.” (Defts.’ Br. at p. 26.) But defendants have not explained what, if any, relevant evidence is missing. And the due process clause does not give criminal defendants an unconstrainedrightto third-party discovery without regard to relevance. (See United States v. Nixon, (1974) 418 U.S. 683, 699-700 [a criminal defendant seeking to subpoena documents must show, amongotherthings, that the documents are relevant, “that they are not otherwise procurable reasonably in advance oftrial by exercise of due diligence,” arid that the defendant “cannot properly prepare for trial” without them].) There is no constitutional right to obtain records when a defendant cannot show whythey are necessary, or whenthe records are otherwise available by exercise of due diligence. (See Pierce, supra, 785 F.3d at pp. 841-842.) Additionally, the California Constitution supports the proposition that defendants should direct discovery requests to the People, who are in a position to protect the interests of the victim. (Cal. Const., art. 1, § 28, subd. (b), pars. (1), (4); Kling v. Superior Court (2010) 50 Cal.4th 1068, 1080.) Seeking communications directly from the victim or from the prosecution—rather than from third party—is the best way to ensure protection of the victim’s constitutionally guaranteed privacy rights, as well as the rights of those with whom the victim may have communicated. (iii) Defendants can subpoena non-content information andusethe results to identify additional sources of evidence Defendants could also issue subpoenasto the Providers seeking non- content information associated with the accounts of Lee and Rice. The SCA provides that the government may obtain non-content information with a - 26 - subpoenaorcourt order.” It also allows service providers to disclose non- content information “to any person other than a governmentalentity” and providers can therefore also provide non-content information to defendants with either a subpoenaor court order. (18 U.S.C. § 2702(c)(6).) | For example, the SCA would not prohibit Defendants from obtaining a court order for non-content information associated with Rice’s accounts. Defendants might use that information to identify communications or other witnesses of interest, and issue subpoenas for content directly to the parties of those communications.° If those witnesses refused to comply, the defendants could ask the court to compel compliance or order them to consent to disclosure from the Providers. (See, e.g.,Juror Number One, supra, 206 Cal.App.4th at p. 864.) _ Litigants regularly employ such procedures to allow discovery to proceed within the confines of the SCA.(See, e.g., Liberty Media Holdings, LLCv. Letyagin (D.Nev. Aug. 1, 2012, No. 2:12-cv-00923-LRH-GWF) 2012 WL 3135671, at p. *4, fn. 3 [granting discovery request to identify the subscriber associated with an IP address]; Braun v. Primary Distributor Doe No. 1 (N.D.Cal. Dec. 6, 2012, No. C 12-586 MEJ) 2012 WL 6087179 [granting request to conduct early discovery by issuing subpoenasto multiple ISPs for subscriber information of certain IP addresses].) Here, > In order for the government to compeldisclosure of “recordsor other information,” such as “header” information or activity logs, it must obtain a court order based on a showingof “specific and articulable facts” that the records sought are “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(c),(d). For basic subscriber information (e.g., a person’s name,address, subscriber identification number,IP logs, services used, length of service, and similar registration data), the government mustissuea grand jury,trial, or administrative subpoena authorized by statute. 18 U.S.C. § 2703(c)(2). ° If necessary to locate or identify the parties, defendants could also issue additional subpoenasto the relevant Internet service provider associated with the IP addresses of any sought-after communications. -27- however, defendants have not pursued those procedures, which could eliminate the claimed need to obtain content information from the Providers. b. Defendants overlook the important privacy interests that the SCA protects Defendants largely ignore the “fundamental purpose”ofthe SCA, whichis to “lessen the disparities between the protections given to established modes of private communication and those accorded new communications media.” (O'Grady, supra, 139 Cal.App.4th at p. 1444; see also Kerr, A User’s Guide to the Stored Communications Act, and a Legislator ’s Guide to Amending It (2004) 72 Geo.Wash. L.Rev. 1208, 1210 [noting that the SCA wasintended to fill a “gap”that left electronic communications unprotected by the Fourth Amendment].) Congress recognized that more established methods of communication, such as mail and telephone, had long enjoyed a variety of legal protections that were not afforded to electronic communications. (O Grady, supra, 139 Cal.App.4th at p. 1445.) Unlike with letters and telephonecalls, the provider of an electronic communications service “may technically have access to the contents of [a] message and mayretain copies of transmission.” (H.R.Rep. No. 99-647, 2d Sess., p. 22 (1986); see also O’Grady, supra, 139 Cal.App.4th at p. 1445 [It bears emphasis that the discovery soughthere is theoretically possible only because of the ease with which digital data is replicated, stored, and left behind on various servers during its delivery .. . [t]raditional communications rarely afforded any comparable possibility of discovery”].) Concernedthat electronic communications could therefore be open to “possible wrongful use and public disclosure by law enforcement authorities as well as unauthorized private parties,’” Congress enacted the SCAin orderto “protect the privacy of stored electronic communications except where legitimate law enforcement needs justify its infringement.” - 28 - (O'Grady, supra, 139 Cal.App.4th at p. 1444 [quoting Sen.Rep. No. 99- 541, 2d Sess., p. 3 (1986)] [emphasis omitted].) Consistent with its stated purpose, the SCA prohibits providers from disclosing certain communications data while providing a framework that allows law enforcement to compeldisclosure based on an increasingly demanding showing, depending onthe sensitivity of the information sought. The United States Supreme Court recently affirmed that modern communications technologies deserve protection under the Fourth Amendment.In Riley v. California (2014) 134 S.Ct. 2473, the Court held that individuals have a reasonable expectation of privacy in the information maintained on a smartphone. Central to the Court’s holding wasthe fact that smartphones—justlike social media accounts—can contain “the privacies oflife.” (/d. at p. 2495 [quoting Boyd v. United States (1886) 116 U.S. 616, 625].) The data on a smartphone—like the data maintained in a social media account—canreveal “‘an individual’s private interests or concerns” and “where a person has been,” which in turn “‘reflects a wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations.’” (/d. at p. 2490 [quoting United States v. Jones (2012) 132 S.Ct. 945, 955 [Sotomayor, J., concurring].) For that reason, the Court held that law enforcement must first obtain a warrant before accessing personal data stored in cell phones. (/d. at p. 2494.) The rationale underlying Riley applies equally to communications content of the kind maintained by providers. Indeed, as Defendants concede, social mediais for manypeople “the hub of their world, the primary vehicle by which opinions are expressed,friends are made, and newsis shared.” (Defts.’ Br. at p. 15). Additionally, the recently enacted California Electronic Communications Privacy Act (CalECPA), Penal Code section 1546 et seq., . demonstrates California’s interest in reinforcing and enhancingthe privacy -29- protections afforded by lawslike the SCA. CalECPAbroadly prohibits California governmental entities in criminal matters from obtaining any “electronic communications information” from a provider except with a warrant or wiretap order based on probable cause. (Pen. Code, § 1546.1(a), (b).) Under CalECPA,“electronic communications information”is defined more broadly than anyofthe categories of information under the SCA—it includesall content, all records or other information, and even somebasic subscriber information (such as IP logs or billing information). (Pen. Code, § 1546(d).) In other words, the California Legislature has responded to advances in communications technology by enacting a law that is both broader and more privacy-protective than the SCA andthe Fourth Amendment. For present purposes, CalECPAis significant becauseit demonstrates that the Legislature’s judgmentis directly contrary to that of | defendants, who appear to view the SCA’s disclosure prohibition asa relic unsuitable for the era of modern technology. (Defts.’ Br. at p. 11 [stating that “previous state and federal courts could not predict the ubiquitousness of social media evidence in criminal courts”].) . In short, the communications content that defendants seek to obtain is material that courts have held are subject to the Fourth Amendment, and that both Congress and the California Legislature have expressly soughtto protect. There is no support in the law for a right to obtain such information, and there is no reason for the Court to recognize such a right now. E. Defendants’ other constitutional arguments lack merit Defendants also attemptto locate a right to pretrial discovery of stored communications content in various other provisions of the Fifth and Sixth Amendments. Their efforts are unavailing. - 30 - 1. The compulsoryprocess clause The Sixth Amendmentprovidesthat “the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.” (U.S. Const., 6th Amend.) That clause does not allow defendants to obtain an order compelling a private party to turn over informationthe disclosure of which would violate federal law. Defendants concede that the United States Supreme Court has never held that the Constitution creates a right to pretrial access to evidence maintained bya third party. (Defts.’ Br. at p. 13.) Defendants further concedethat “[t]here is no general constitutional right to discovery in a criminal case.” (Id. at p. 12; see Weatherford v. Bursey (1977) 429 U.S. — 545, 559 [no Sixth Amendmentviolation where the prosecution failed to reveal beforetrial the names of undercover witnesses who maytestify against a defendant].) And this Court has repeatedly declined to recognize a constitutionalright to pretrial discovery of evidence under the Sixth Amendment. (See, e.g., People v. Clark (2011) 52 Cal.4th 856, 983 [declining “to recognize a Sixth Amendmentviolation when a defendantis | denied discovery that results in a significant impairmentofhis ability to investigate and cross-examine a witness.”]; People v. Prince (2007) 40 Cal.4th 1179, 1234, fn.10 [To the extent defendant’s claim concerns pretrial discovery and is based upon the confrontation or compulsory processclauses of the Sixth Amendment,it is on a weak footing.”]; Hammon, supra, 15 Cal.4th at 1117 .) Defendants fail to show how,in light of this authority, they have a Sixth Amendmentright to compel Providers to disclose: communications content in this case. The compulsory process clause guarantees “the rightto the government’s assistance in compelling the attendance of favorable witnesses at trial.” (Pennsylvania v. Ritchie (1986) 480 U.S. 39, 56 [plurality opinion] [emphasis added].) But the United States Supreme Court -31- “has never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of a witness, or to require the government to produce exculpatory evidence.” (Ritchie, supra, 480 U.S.at p. 56 [emphasis added].) In Ritchie, a criminal defendant soughtpretrial access to records in the possession of a Pennsylvania government agency. (Ibid.) The governmentrefused to disclose them, citing Pennsylvania law requiring the records to be kept confidential.bid.) The United States Supreme Court noted that it had never extended the compulsory process clause to require the government to produce exculpatory evidence. (/bid.) Andifthe clause does not require the production of evidence by the government—aparty to whomit expressly applies—then it cannot extend to require non-parties to produce evidencein the face of a federal statute barring that production. (People v. Webb (1993) 6 Cal.4th 494, 518 [declining to hold that defendanthas pretrial constitutional right to examine psychiatric records, noting in particular that unlike the records in Ritchie, the records in Webb werenot in the possession of the government].) Candidly acknowledging the lack of authority for their position, defendants “urge[] this Court to take the lead in the nation” and independently recognize a constitutional right to pretrial discovery of “social media records” under the compulsory process clause. (Defts.’ Br.at p. 14.) But this Court has repeatedly addressed Ritchie and declined to recognize such right. (See, e.g., Clark, supra, 52 Cal.4th at p. 983 [declining “to recognize a Sixth Amendmentviolation when a defendantis denied discovery that results in a significant impairmentofhis ability to — investigate and cross-examine a witness.”]; Prince, supra, 40 Cal.4th at p. 1234, fn. 10; Hammon, supra, 15 Cal.4th at p. 1117; Webb, supra, 6 Cal.4th at p. 518.) Moreover, the compulsory process clause does not automatically trump statutory law, statutory and common-law privacy privileges, or rules of evidence. For example, there is no automatic Sixth -32- Amendmentviolation when a court sanctions a criminal defendantfor failing to disclose a witness by preventing the defendant from calling that witnessat trial. (Taylorv. Illinois (1988) 484 U.S. 400.) Otherrestrictions, such asthe attorney-client privilege and the marital-communications privilege, may similarly preclude ‘testimony without running afoul of the compulsory processclause. (See, e.g., Valdez v. Winans (10th Cir. 1984) 738 F.2d 1087, 1089-90 [attorney-client privilege]; United States v. Lea (7th Cir. 2001) 249 F.3d 632, 642-43 [marital-communicationsprivilege].) In addition, the compulsory process clauseis violated only “if the criminal defendant makesa plausible showingthat the testimony . . . would have been material andfavorable to his defense, in ways not merely cumulative to the testimony ofavailable witnesses.” (United Statesv. Valenzuela-Bernal (1982) 458 U.S. 858, 873 [emphasis added].) There is no constitutional violation where, as here, a defendant is unable to present testimony that he or she merely speculates may berelevant, particularly if similar testimony is available from other witnesses. (/bid.) Finally, defendants invokethe right to present a meaningful defense, which they locate in the compulsory process clause and in the due process clause. (Defts.’ Br. at p. 15-16.) But they cite no case holding that the right to present a complete defense includes right to pretrial discovery, especially where such discovery would require a private party to violate federal law. Indeedit doesnot: it instead prevents arbitrary rule interpretation that prohibits a defendant from offering evidencethat is already available. (See, e.g, Holmes v South Carolina (2006) 547 U.S.319, 326 [the right to present a complete defense “prohibits the exclusion of defense evidence underrules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well- established rules of evidence permittrial judges to exclude evidenceifits probative value is outweighed by certain other factors”].) It does not create -33- an absolute right to introduce evidence, muchless to obtain it from third parties. (Ibid.; see-also United States v. Scheffer (1998) 523 U.S. 303, 308 [permitting a court to exclude polygraph evidence, and holdingthat “[a] defendant’s right to present relevant evidenceis not unlimited, but rather is subject to reasonablerestrictions”].) 2. The confrontation clause The Sixth Amendment’s confrontation clause providesthat “the accusedshall enjoy the right .. . to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) That clause guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20 [no confrontation clause violation where prosecution witness has a lapse in memory impeding defense questioning].) As the plurality in Ritchie noted, the clause is satisfied so long as “defense counsel receives wide latitude at trial to question - witnesses.” (Ritchie, supra, 480 U.S.at p. 53.) It does not give a defendant the power to require the pretrial disclosure of any information that might be useful for impeachment. (Ibid.) Indeed, “nothing in the case law supports” interpreting the confrontation clause as “‘a constitutionally compelled rule of pretrial discovery.” (/bid.) Defendants cite no contrary authority. Instead, they rely on Davis v. Alaska (1974) 415 U.S. 308, but the Court in that case examined a | defendant’s right under the confrontation clause to pursuea line of questioning during witness testimonyattrial. (Defts.’ Br. at p. 35.) The Court did not consider a defendant’s rightto pretrial discovery of evidence maintained by a third party. (See Hammon, supra, 15 Cal.4th at p. 1124.) Nordid it consider whether a defendant could compela third partyto risk committing a violation of federal law. -34- 3. The right to counsel The Sixth Amendmentalso provides that“the accused shall enjoy the right . . . to the Assistance of Counsel for his defense.” (U.S. Const., 6th Amend.) That clause guarantees the assistance of counselatall critical stages ofthe criminal process. (See, e.g., Montejo v. Louisiana (2006) 556 U.S. 778, 786.) Defendants argue that plea negotiationsare critical stage in many criminal cases. (Defts.’ Br. at pp. 32-34.) That may betrue, but defendants cite no authority to suggest that effective assistance requires the ability to compel the disclosure of evidence from a third party. CONCLUSION The judgmentofthe Court of Appeal should be affirmed. DATED: February 16, 2016 PERKINS COIE LLP Co ° D>Bible BY: Cota Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com Attorneys for Petitioners Facebook,Inc., Instagram, LLC, and Twitter, Inc. -35- WORD COUNT CERTIFICATION Pursuant to California Rules of Court, Rule 8.520(c), counsel of record herebycertifies that the foregoing AnswerBrief on the Merits consists of 10,559 words, including footnotes, as counted by the Microsoft Word program usedto prepare this brief. DATED:February 16, 2016 PERKINS COIE Lip By: Zeie D Mill Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com Attorneys for Petitioners Facebook,Inc., Instagram, LLC, and Twitter, Inc. - 36 - PROOF OF SERVICE Facebook, Inc., et al. v. Superior Court ofSan Francisco Case No. 8230051 I, Lisa DeCosta, declare: I am a citizen of the United States and employed in the County of San Francisco, State of California. I am over the age of 18 years and am nota party to the within action. My business address is Perkins Coie LLP, - 505 Howard Street, Suite 1000, San Francisco, CA 94105. Iam personally familiar with the business practice of Perkins Coie LLP. On February 16, 2016, I caused the following document(s) to be served on the following parties by the mannerspecified below: ANSWERBRIEF ON THE MERITS XXX (BY U.S. MAIL) Onthis day; I placed the document(s)listed abovein a sealed envelope with postage thereon fully prepaid, the United States mail at San Francisco, California addressed as set forth below. _ Heather Trevisan Office of the San Francisco County District Attorney 850 Bryant Street, Room 322 San Francisco, CA 94103 heather.trevisan@sfgov.org Janelle Caywood 3223 Webster Street San Francisco, CA 94123 janelle.caywood@gmail.com Susan Kaplan 214 Duboce Street San Francisco, CA 94103 sbkapl@yahoo.com -37- Counselfor THE PEOPLE OF THE STATE OF CALIFORNIA (Case No. 13035657) Counselfor Real Party in Interest LEE SULLIVAN (Case No. 13035657) Counselfor Real Party in Interest LEE SULLIVAN (Case No. 13035657) Ana Maria Gonzalez Counselfor THE PEOPLE OF Office of the San Francisco County THE STATE OF CALIFORNIA District Attorney (Case No. 13035658) 850 Bryant Street San Francisco, CA 94103 ana.gonzalez@sfgov.org Jose Umali _ Counselfor Real Party in The Flood Building Interest DERRICK HUNTER 870 Market Street, Suite 424 (Case No. 13035658) San Francisco, CA 94102 umali-law@att.net Superior Court of the City and County Respondent SUPERIOR of San Francisco COURT OF THE CITY 850 Bryant Street AND COUNTY OF San Francisco, CA 94103 SANFRANCISCO Clerk of the Court Court of Appeal, First District, Div. 5 350 McAllister Street San Francisco, CA 94102 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 16, 2016 at San Francisco, California. a” YY Lisa DeCosta - 38 -