FACEBOOK v. S.C.Petitioners’ Response to Amicus Curiae BriefCal.May 12, 2016SUPREME COURT COPY IN THE SUPREME COURTOF CALIFORNIA No. $8230051 FACEBOOK,INC., INSTAGRAM, LLC, AND TWITTER,INC., Petitioners, Vv. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, SUPREME COUR| Respondent. - Z - r) DERRICK D. HUNTERand LEE SULLIVAN, MAY 1.2 2018 Real Parties in Interest. Frank A. ivicuire Clerk After Published Opinion by the Court ofAppeal Deputy First Appellate District, Division 5, No. A144315 Superior Court ofthe State of California County of San Francisco The Honorable Bruce Chan, Judge Presiding Nos. 13035657, 13035658 ANSWERTO BRIEFS OF AMICUS CURIAE 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 RTyler@perkinscoie.com SBali@perkinscoie.com Perkins Coie LLP Perkins Coie LLP 1201 Third Avenue, Suite 4900 3150 Porter Drive Seattle, WA 98101 Palo Alto, CA 94304 Telephone: 206-359-8000 Telephone: 650-838-4300 Facsimile: 206-359-9000 Facsimile: 650-838-4350 Attomeys for Petitioners Facebook,Inc., Instagram, LLC, and Twitter, Inc. IN THE SUPREME COURT OF CALIFORNIA No. §230051 FACEBOOK,INC., INSTAGRAM, LLC, AND TWITTER,INC., Petitioners, V. 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 ANSWERTO BRIEFS OF AMICUS CURIAE 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 RTyler@perkinscoie.com SBali@perkinscoie.com Perkins Coie LLP Perkins Coie LLP 1201 Third Avenue, Suite 4900 3150 Porter Drive Seattle, WA 98101 Palo Alto, CA 94304 Telephone: 206-359-8000 Telephone: 650-838-4300 Facsimile: 206-359-9000 Facsimile: 650-838-4350 Attorneys for Petitioners Facebook,Inc., Instagram, LLC, and Twitter, Inc. TABLE OF CONTENTS INTRODUCTION........ccccescecsesssssccecsrssseescencsceeesessneneceseesssaesenseeeenseeeesesnsnes 1 ARGUMENT.........ccccccccssssssccscesscsssessceseenssssesessesesseseeseseseeessaeeceeseeseasenseeaseass 2 A. The SCAprohibits the disclosures that defendants seek........ 2 1. Section 2702 unambiguously prohibits the Providers from complying with defendants’ SUDPOCIAS...........csccesscescsscsscnecseceseceasecsseacesnsssesseesseesnseess 2 2. Allowing disclosure in these circumstances would frustrate the SCA’s purposes..0.......... ee eeeeeeseeeteeeteeeenes 4 B. A state court may notdirect the Providers to violate the SCA..cccecesssesssssesececessescesnenessesceseseecesseasensaseesneesatceeesesesenseeeeaes 7 C. In the circumstances of this case, defendants lack a constitutional entitlement to disclosure of the communications content at 1SSUC .................cececesssseesssescccaseeees 8 1. | Hammonforecloses defendants’ constitutional CLAIMS...........0csccccceececccececcccccccsecsececcceccececcccccnsenscecseenees 8 2. Applying The SCA Would NotViolate Defendants’ Constitutional Rights.............cscscesseees 11 a. Defendants Have Other Methods To Obtain The Evidence They Seek.................... 11 b. Section 2702 Of The SCA Is Consistent With The Fifth, Sixth, and Fourteenth Amendments To The U.S. Constitution......... 13 CONCLUSION1... ceccceeeceecseesescecesesssscessessesrsseccesenseseesenseesensessaseeeeseees 14 TABLE OF AUTHORITIES CASES Bourhis v. Lord (2013) 56 Cal.4th 320.00... cccssccscsscessssscsssseessessessecssesseseesseccsecscscsavene 10 Davis v. Alaska (1974) 415 US. 308 oeeesesscseeseesesesssessssessesessessesesseeesseeesesessnsessasenes9 Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203 uo... eceecssssessesessssseeseeesseeeseenees 2,5, 13, 14 FTC v. Netscape Commc’ns Corp. (N.D. Cal. 2000), 196 F.R.D. 559 oecesesccsessssscsseesseesscescscsessssenseessens4 Hilton v. South Carolina Public Rys. Comm’n (1991) 502 U.S. 197 Liecccceeessseesessesesseeseseesseeenesseseeseneeteeeseaeenenes 10 In re J.H. (2007) 158 Cal.App.4th 174...cecccsssssscssecesssssscssessesesseseseesesseseneecass 1] Kling v. Superior Court, 50 Cal.4th 1068 (2010)... ceccessssscssssessssseeseessecesesseseseeeseessscesseseesees 5 Marbury v. Madison (1803) 1 Cranch 137 0... eeeeeecessesccesesseseseecseessesseeescessessesetsesessssssenssseeses7 O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423 ooececsessssessesssesssesseseeseseeesseeses 3,4, 5 Packer v. Superior Court (2014) 60 Cal.4th 695oeeccccesssssssesesssessessseeesseseessessscessseessecsseaceses 12 Pennsylvania v. Ritchie (1987) 480 US. 39 oeccccsseseeecceecssesssssseseeeesesseescesseseesesseseseasscsusesseaes9 People v. Hammon | (1997) 15 Cal.4th 1117...cccsseesessssessesessesssseeeeeesseeneseseeessecees passim People v. Rells (2000) 22 Cal4th 860.000... ceccssssescsseseseseeseescssesssesssssessesecseseesesessessnens 11 People v. Sutter (1982) 134 CalApp.3d 806.0... .cceccccssssssseetsessecsesessecssesseesseecsscsseeses 13 Riley v. California (2014) 134 S.Ct. 2473 oo eccccsscesssesesesesseneensessseeessesceseeseseseseseusessessseases6 Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal4th 489oosccsessseesesseseessessesessssssesssssssseseseseenenees 10 United States v. Gonzales (1997) 520 U.S. 1 ceeeeesceseetseceecectsscseesesaeesssecesssesesassesseesseseseseeseeseees3 United States v. Pierce (2d. Cir. 2015) 785 F.3d 832 ooo. eeeccsescessssseessssessessessecesssesesesesessssess 11, 13 United States v. Shah (E.D.N.C. 2015) 125 F.Supp.3d 570 oo. ceesscssssssesscssesessssessseesesseesees 12 United States v. Warshak (6th Cir. 2010) 631 F.3d 266... ceecessesccseesssssseesesesseessecsseeseseessees 6, 14 STATUTES 18 U.S.C. § 793 oo ecesssseseseessessssssssscsssesesssscsseesssseseeecscseseerecseensseeeetersieasseneaees 8 18 U.S.C. § 2510(8) oeceseecesceseesceeesseeesesesesseseensesseseesseseeseseesencsesecsesecssees2 18 U.S.C. § 25161) oo.eeeeesceeeescceeceeeseteeseseesecaseeseeseesseeseessessseseessesssnsseees 13 18 U.S.C. § 2701 et SOQ... ceccecsscsssesscessssssessesseecseessecesseessecresssaseucses passim 18 U.S.C. § 2702 eessossssstssstsntsssssstinanstinssstnestentsnesintentnte 2,3,4, 13 18 U.S.C. § 2702(a)(L) sscsesssesssecscssessssssecsssssssssessececsusecssecsuscesssessssssussssssseesses2 18 U.S.C. § 2703(a) oeeeeeeeecseceesceseeeesesseseecesseeeessesseesssessessessseseeseseseseeses 14 18 U.S.C. § 2703 (D) ooo.eeeeeesecsseceessceeesceeescseseeseeeaensesscecseensesessssessestesesecenss 14 18 U.S.C. § 2703(b)(1)(B)«0... eeeeeeeeeseecsseneseseeseecsceneeseeescessesssessecsesneseens 6, 14 18 U.S.C. § 2707(€) ooeessesssessceseeeeseasseesteteseetecceceseeesesseesesesssessesseeseesneseees3 Cal. Pen. Code § 1326.00.00... cccecsccssssessecssssceccessecesseeeseesessecessccsssesssscsasseeenees5 Cal. Pen. Code § 1524.0... ecsesesssesseeessnnessssssessseessnessnessnsecuseensnnaressnseessnesanes 5 Cal. Pen. Code § 1546 et Seq.......eeecscsessssstsssteenssseecssseesseessensesesessasenses 6, 14 -ii- OTHER AUTHORITIES Fed.R.Crim.P. 41(D) oo.ceeesssssscsseseesceesseceesssesesecseeseeeeeseceedecsseeseesaseesseees 13 U.S. Const. amend. [V ............ccccccccessscsccesceeseeeseseeeeceeessssnescesssseeeseseees 5, 6, 14 USS. Comst. amend. V.............c:ccccesccsssscesessessnccescesecesssscecesseccessecseeeses 2,9, 13 U.S. Const. amend. V1 ............cccscssseessscssscesseccessecesesseeesecesesesseseees 2, 8,9, 13 USS. Const. amend. XIVecceeeeesesssceseeseeceeeseeeeeeseenesessesaceesteseeesseseeaees 13 Webster’s Third New International Dictionary 97 (1976)......:.sccsecseeeseeeees3 - ill - INTRODUCTION Therealparties in interest (defendants below) ask this Court to hold that a state court adjudicating a criminal case maydirect a third party to violate the federal Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq. The Court of Appeal correctly rejected that argument, whichis foreclosed by the supremacyclause ofthe United States Constitution. Amici curiae San Francisco Public Defender’s Office (SFPDO), California Attorneys for Criminal Justice, et al.(CACJ), and California Public Defenders Association, et al. (CPDA) now ask this Court to adopt defendants’ position, but their briefs add nothing to the flawed arguments already presented by defendants. Thestarting point in this case must be the SCA, which unambiguously prohibits the disclosure sought by defendants. Although amici attempt to demonstrate otherwise, their efforts founder on the statutory language. Additionally, their arguments fail to take into accountthe privacy interests underlying the SCA. Amici denigrate those interests, but the unmistakable trendin federal and state courts and legislatures is to strengthen privacy protections for communications, not weaken them. The supremacyclause ofthe United States Constitution forbids state court from ignoring a federal law such as the SCA.Like defendants, amici respond by arguing that the SCA is unconstitutional. That argumentis misdirected. Any alleged constitutional violation in this case arises not from the SCAitselfbut from the state’s decision to prosecute defendants. The available remedies for a constitutional violation resulting from that decision do not include ordering a third party to act in contravention of a federal statute. In any event, amici’s constitutional arguments lack merit. In People v. Hammon(1997) 15 Cal.4th 1117, this Court held that a criminal defendant - does not havea constitutional right to pretrial discovery. Amici suggest confining that decisionto its facts, but their arguments are unpersuasive. And even apart from Hammon,no authority supports amici’s interpretation of the Fifth and Sixth Amendmentsor suggests, as amici would haveit, that defendants and the government must possess equalinvestigative capabilities. This Court should apply federal law and reject amici’s novel constitutional theories. ARGUMENT A. The SCA prohibits the disclosures that defendants seek The Court of Appeal correctly observed that “[i]t is undisputed that the materials defendants seek here are subject to the SCA’s protections.” (Facebook, Inc. v. Superior Court (2015) 240 Cal.App.4th 203, 213.) There is good reasonfor the parties’ agreementon that issue. Some amici argue that the SCA’s prohibition on the disclosure of the contents of communications should not apply here, but that argument lacks merit. 1. Section 2702 unambiguously prohibits the Providers from complying with defendants’ subpoenas The SCA makesit unlawful for a provider of an electronic communication service 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’s definition of “contents”—which includes “any information concerning the substance, purport, or meaning”of an electronic communication—encompassesthe materials sought by defendants’ subpoenas. (18 U.S.C. § 2510(8).) The SCA enumerates only a few, narrow exceptionsto the prohibition on disclosing the contents of a communication, none ofwhich includes responding to a subpoenaissued at the behest of a criminal defendant. Amicus CPDAsuggests in passing that the SCA does not prohibit disclosure to a court because “a court conducting an in camera examination of recordsis [not] a ‘person or entity’ within the meaning of the SCA.” (CPDABr.at p. 26; see also CACJ Br. at 5, 12; SFPDO Br.at 7-10). Thatis incorrect. Section 2702 refers to “any personor entity,” indicating that the phraseis to be interpreted broadly. (United States v. Gonzales (1997) 520 USS. 1, 5 [“Read naturally, the word ‘any’ has an expansive meaning,thatis, ‘one or someindiscriminately ofwhatever kind.’”] [quoting Webster’s Third New International Dictionary 97 (1976)]; see O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1445 [noting that the SCA seeks not only to “shield private electronic communications from governmentintrusion but also to encourage “innovative forms’ of communication by granting them protection against unwanted disclosure to anyone” [emphasis in original].) And a court falls within the ordinary meaning of the word “entity.” In any event, the only purpose of an in camera examination wouldbeto facilitate further disclosure to defendants, who are unquestionably “person[s]” to whom the SCAprohibits disclosure. Amicus CPDAalso suggests that if the Providers are compelled to disclose the informationat issue in response to a subpoena, they might have a defenseto civil liability under the SCA. (CPDA Br. at pp. 19-20). While the statute does create a defense for good-faith reliance on a court order, courts have not evaluated the applicability of that defense in circumstances—such as those presented here—in which an orderis contrary to the requirements of the statute. (18 U.S.C. § 2707(e).) More importantly, the potential availability of a defense to Jiability does notalter the statute’s basic prohibition, andit provides no basis for ordering a violation ofa statute. Rather, as the Court of Appeal observed in O’Grady, the SCA’s safe harbor “is obviously intendedto protect service providers who would otherwise find themselves between the Scylla of seemingly valid coercive process and the Charybdis of liability under the Act,” and litigants cannot “invoke this provision to compel disclosures otherwise prohibited by the Act.” (139 Cal.App.4th at p. 1442.) 2. Allowing disclosure in these circumstances would frustrate the SCA’s purposes Like defendants, amici fail to appreciate the importanceofthe privacy interests that the SCA protects. The SCA’s “fundamental purpose” was to “Jessen 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). Stored copies of communications exist only becauseserviceslike those ofthe Providers exist. Moretraditional forms of communication are generally not subject to “any comparable possibility of discovery.” (/d. at p. 1445) A letter, for example, wouldbe “in the sole possession and controlofthe recipient or,ifthe sender retained a copy, the parties.” (Ibid.) Likewise, a phonecall is “as ephemeral as a conversation on a street corner; no facsimile of it existed unless a party recorded it—itself an illegal act in somejurisdictions, including California.” (Ibid.) Congress enacted the SCA to afford electronic communications the sameprivacyprotections that apply to other communications media. Amici point out that O’Grady and manyofthe other cases discussing section 2702 involvedcivil litigation, not criminal cases. (CACJ Br. at p. 11.) But nothing in the SCA suggests that the statute should be interpreted differently in the context of a criminal case. To the contrary, the SCA is part of the federal criminal code and was“drafted in such a mannerthat clearly anticipates the criminal context.” (FTC v. Netscape Commc’ns Corp. (N.D. Cal. 2000), 196 F.R.D. 559, 560.) And the legislative history makes clear that the SCA wasnot intended to be limited to civil litigation. (See U.S.S. Rep. No. 99-541 (1986)at 3 [the SCA wasintendedto curtail surveillance by “overzealous law enforcement agencies, industrial spies, and private parties.”].) Amici cite no contrary authority. Amici contend that the subpoena duces tecum procedureset forth in Penal Codesection 1326 is equivalent to the warrant procedure contemplated by the SCA.(See, e.g., SFPDO Br. at 7-10.) This is incorrect. The subpoena procedureofsection 1326 does not provide privacy protections equivalent to those ofa warrant. Before obtaining a warrant, the government must make an ex ante showing ofprobable cause. (U.S. Const. amend. IV; Cal. Pen. Code § 1524.) By contrast, section 1326 does not require any judicial review before a subpoenais issued. Moreover, even if amici were correct that the procedures provide equivalent privacy protections, that still would not be a basis for disregarding the plain termsofthe statute. Although the issuance ofa subpoenais merely a “ministerial act,” Kling v. Superior Court, 50 Cal.4th 1068, 1076 (2010), in that it does not entitle defendants to receive the records until a judicial determinationis made,trial courts often lack sufficient information to adequately balance privacyinterests. Certainly, they do not have a sworn declaration establishing probable cause,as in the case of a warrant. Moreover, as the Court ofAppeal noted, the individual whoserecords are subpoenaed may not even receive notice of the subpoena. (Facebook, 240 Cal.App.4th at p. 223.) Thus,absent objection by providers,the trial court may not be aware of the privacyinterests at stake or the level of scrutiny required. (/d. at p. 224.) “Such a nonadversarial ex parte processis ill-suited to adjudication of contested issues ofprivilege.” (Ud. at p. 223-24.) In addition, requiring providers to produce recordsto the court for in camera review before any determination of relevancy or need imposesa significant burden on providers, which the SCAseeks to avoid. As the Court ofAppeal recognized, a primary goal ofthe SCAis to reduce the “severe administrative burdens” on providers that would arise ifthey were “required to respondto (and object to) routine pretrial subpoenas” issued by criminal defendants.(Jd. at p. 225, fn. 15; see also O’Grady, supra, 139 Cal.App.4th at pp. 1446-47 [responding to “routine subpoenas would indeedbelikely to impose a substantial new burden on service providers”].) Amici CACJ observes that the SCA was enacted 30 years ago, “when no one even knewor could really contemplate how huge the social media wayoflife would become,” and it disparages the communications content protected bythestatuteas little more than “cute kittens videos.” (CACJ Br.at pp. 10, 13.) To the extent CACJ is arguing that technological developments require that the statute be amended, that argumentis appropriately directed to Congress, not to this Court. In any event, courts and legislatures have recognized that the increasing importance of electronic communicationsis a reason to strengthen, not weaken, privacy protection for communication contents. As explained in the Providers’ answerbrief on the merits (at pp. 28-30), the United States Supreme Court has recognized that modern communications technologies enjoy protection from disclosure to the government under the Fourth Amendment. For example, in holding that individuals can have a reasonable expectation ofprivacy in the information stored in a smartphone, the Court emphasized that smartphones can contain “the privaciesof life,” something that can equally be true of social media accounts.(Riley v. California (2014) 134 S.Ct. 2473, 2494-95.) In addition, the recent enactment of the California Electronic Communications Privacy Act, Penal Code section 1546 et seq., demonstrates the Legislature’s view that robust privacy protection for electronic communications informationis even more important nowthanin the past.’ ' Congressis currently considering strengthening the SCA. While the statute permits a “governmentalentity” to obtain certain categories of content under an administrative subpoena or court order, the Sixth Circuit has held that a warrant based on probable cause is required. (18 U.S.C. § 2703(b)(1)(B); United States v. Warshak(6th Cir. 2010) 631 F.3d 266, 288.) Last month, the House ofRepresentatives unanimously passed the Email Privacy Act, which would amendthe SCA to codify Warshak. (H.R. No. 699, 114th Cong., 2d B. A state court may not direct the Providers to violate the SCA As the Providers have explained, enforcing the SCA according to its terms would not violate defendants’ rights under the due process clause or any other provision of the Constitution. (Answer Br. on the Merits at pp. 18-35.) But as the case comesto this Court, the Court need not consider defendants’ constitutional arguments because the constitutional provisions on which defendants rely do not authorize a state court to disregard the supremacyoffederal law by ordering the Providers to violate an Act of . Congress. Thus, even if the People’s decision to prosecute defendants in these circumstanceshas givenrise to a constitutional violation, whichit has not, the available remedies for any such violation do not include enforcing the trial court’s subpoenas (whetherissued before trial or during trial). Defendants and amici cite Marbury v. Madison (1803) 1 Cranch 137, and observe that this Court has authority to evaluate the constitutionality of the SCA. (CACJBr. at pp. 9-10; CPDA Br.at p. 27.) But neither defendants nor amici have identified any constitutional infirmity in the SCA itself, nor could they plausibly do so, as none ofthe constitutional provisions on which they rely can be read to create a freestanding right to disclosure of information. Rather, those provisions create a right of accessto information (if at all) only in the context ofa criminal prosecution. In other words, ifthere is a constitutional problem in this case,it arises only from the interaction of three things: (1) an alleged constitutional requirementthat criminal defendants have accessto certain information in the context ofa criminal prosecution, (2) the SCA’s prohibition ondisclosure of such information, and (3) the state’s decision to bring a criminal prosecution in this case. Any constitutional problem thusarises from the state’s actions. But a state may Sess., § 3, pp. 4-9 (2016).) The bill is now before the Senate, where 27 Senators have sponsored a companionbill. (Sen. No. 356. 114th Cong., 1st Sess., § 3, pp. 3-5 (2015).) not bring a state-law prosecution that infringes on constitutional requirements and then resolve that problem by forcing a third party to violate a federalstatute. It is the state’s actions that must yield to the Constitution and an Act of Congress, not the other way around. Asthe Providers explained in their answer brief on the merits (at pp. 11-13), that principle is well established when the prohibition on disclosure arises from 18 U.S.C. § 793, which prohibits the disclosure of classified information. Tellingly, defendants and amici makelittle effort to address that analogous scenario. Defendants observe that social media content maydiffer from national-security information in various ways, but that is beside the point. (Reply Br. at pp. 9-10.) Defendants apparently consider the Espionage Act more important than the SCA, but evenifthat is correct, a state court may not pick and choose which federal statutes it will enforce. When classified informationis at issue in a criminal proceeding,a state court must find some wayto proceed that is consistent with federal law. The sameis true whena case involves information protected by the SCA. OF In the circumstancesof this case, defendants lack a constitutional entitlement to disclosure of the communications contentat issue 1. Hammon forecloses defendants’ constitutional claims In People v. Hammon,supra,15 Cal.4th 1117, this Court rejected the proposition that a criminal defendant hasa constitutional rightto pretrial discovery. That decision forecloses the constitutional arguments that defendants and amici now advance. Like defendants, amici seek to confine Hammon’s holdingto thefacts ofthat case, which involvedthe pretrial disclosure ofpsychotherapist-patient privileged evidence. (SFPDO Br.at pp. 3; CACJ Br.at p. 15.) But the Court’s reasoning wasnot limited to the psychotherapist-patientprivilege, or even to privileges in general. Instead, the Court examined United States Supreme Court cases applying the due process clause and the Sixth Amendment, andit observed that those cases did not address pretrial discovery: “By its terms, the decision in [Davis v. Alaska (1974) 415 U.S. 308] involved a defendant’s trial rights only.” (Hammon, supra, 15 Cal.4th at p. 1124. (emphasis in original)) As for the suggestion “that a defendant might obtain beforetrial any information he would be able under Davis to obtain at trial,” the Court explained that “[t]hat assumption . . . is called into question in light of the United States Supreme Court’s decision in Pennsylvania v. Ritchie (1987) 480 U.S.39.” Ubid.) This Court declined to “tak[e] such a long step in a direction the United States Supreme Court has not gone.” (/d. at p. 1127.) The United States Supreme Court’s Fifth and Sixth Amendment cases, which this Court surveyed in Hammon, were not confinedto the psychotherapist-patient privilege, and neither was this Court’s reasoning. As the Court observed, “[w]hen a defendant proposes to impeach critical prosecution witness with questionsthat call for privileged information, the trial court may becalled upon . . . to balance the defendant’s need for . cross-examination andthestate policies the privilege is intended to serve.” (Hammon,supra, 15 Cal.4th at p. 1127.) But “[b]eforetrial,” the Court explained, “the court typically will not have sufficient information to conduct this inquiry; hence,ifpretrial disclosure is permitted, a serious risk arises that privileged material will be disclosed unnecessarily.” (Jbid.) Although the Court mentioned privileges, its reasoning is equally applicable to any policy prohibiting disclosure: pretrial disclosure risks undermining that policy unnecessarily because the information mayturn out not to be necessary attrial. If there were any doubt on the correct interpretation ofHammon,it would be resolved by this Court’s repeated reaffirmation of that decision in a variety of contexts not involving the psychotherapist-patientprivilege. (AnswerBr. on the Merits, p. 16 [listing cases].) Amici havelittle to say about those cases, but their suggestion that Hammon be confinedtoits facts would require overruling them. Noting that the subpoenaat issue here was issued one day beforetrial wasto begin, amici suggest that Hammon’s distinction betweenpretrial subpoenasandtrial subpoenasisartificial. (CPDA Br.at p. 15.) Butthe line drawn in Hammonis a reasonable one. The beginningoftrial is a constitutionally significant event not only because jeopardy has attached but also because beforetrial, the court cannot know whatevidence or testimony will be proffered, or even whether the case will proceedto trial. (See Answer Br. on the Merits, pp. 16-17.) These factors are central to determining the existence of a constitutional concern: should no concern arise, anypretrial disclosure would have been unnecessary. (Hammon, supra, 15 Cal.4th at p. 1127.) Finally, neither amici nor defendants address stare decisis. Even if this Court “might have decidedthe issue differently if it had been thefirst to consider it,” it should not overrule its precedent without a “good reason”for doing so. (Bourhis v. Lord (2013) 56 Cal.4th 320, 327.) No such reason exists. Hammon establishes a clear, workable rule, and no subsequent decision ofthe United States Supreme Court has cast doubt uponits holding. Moreover, because federal and state law require a search warrant to compel a provider to disclose content, overturning Hammon would “dislodgesettled rights and expectations” regarding the privacy protections that are in place for the contents of electronic communications. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 504 [quoting Hilton v. South Carolina Public Rys. Comm’n (1991) 502 U.S. 197, 202].) This Court should adhere to Hammon. -10- v o n a g e 2. Applying The SCA Would Not Violate Defendants’ Constitutional Rights a. Defendants Have Other Methods To Obtain The Evidence They Seek Even if amici’s constitutional arguments were not foreclosed by Hammon,they would lack merit. As an initial matter, the arguments advancedby amici are predicated on the assumption that disclosureis necessary for defendants to present a defense, but in fact, defendants may have multiple alternatives to obtain the information they seek: they can obtain content from the witness, the government, or from otherparties to the communications. (AnswerBr. On the Merits, 23-28). In light of these alternatives, the correct approachto follow is that of United States v. Pierce (2d. Cir. 2015) 785 F.3d 832, 841-842, which rejected a constitutional challenge to the SCA because the defendantin that case had obtained some of the content he sought and could obtain any additional content by other means. Amiciincorrectly suggest that this Court must deferto the trial court’s anticipatory determination that defendants have no alternative mechanisms to obtain the evidence they seek. (CPDABr.at p. 26.) But this Court reviews questions of law de novo.(People v. Rells, (2000) 22 Cal.4th 860, 870; see also In re J.H. (2007) 158 Cal.App.4th 174, 183 [“[c]lonstitutional issues are reviewed de novo.”’].) This Court, like the Court ofAppeal, can independently assess the facts to determine whether, as a matter of law, the existence of alternative discovery mechanismsrenders any assessmentof constitutional violations premature. Defendants and amici contend that there is no dispute that the records soughtare relevant. (Reply Br. at p. 21) But the mere fact that the records may meet the minimal standard ofrelevance for issuance of a subpoena does not mean that the records are necessary or that they would not be duplicative -ll- of other evidence. Defendants have already placed ample information in the record to support the arguments they wish to make about Lee,and they fail to describe whatelse they expectto find, if anything, in any communications they do not already have. Defendants and amici also neglect to explain why any allegedly necessary information could notbe obtained from Lee, through requests for non-content data directed to the Providers, or from the People. Amici contend that social media records must be produced by providers to overcomean authentication objection when the witness to whom the records pertain is uncooperative. (CPDA Br.at p. 28.) That is incorrect. The Providers cannot identify who authored content on their services, and therefore they cannot authenticate such records. (See United States v. Shah (E.D.N.C. 2015) 125 F.Supp.3d 570, 575 [stating that testimony from Google wasinsufficient to authenticate statements contained in emails produced to the government, noting that “[t]he statements at issue are not Google’s business records, as that term is defined under Rule 803(6), becausethey fail the ‘knowledge’ requirement”].) Put another way, the Providers do not know whowasat the other end of a computeror phone and cannottestify as to whether Lee, Rice, or some other person authored the communicationsat issue. This Court’s decision in Packer v. Superior Court, (2014), 60 Cal.4th 695, cited by CPDA,doesnotestablish otherwise. (CPDA Br. at p. 11.) There, the prosecutor objected to the admissibility of a Twitter message on the groundsthat there had been no showingthat the message in a person’s Twitter accountcould beattributed to that person. (Jd. at p. 709.) But nothing in the opinion suggests that the relevant message could be authenticated by Twitter, which cannot determine whether the person who posted the message was the accountholder or someoneelse. Becausesocial media content cannot be authenticated by providers, requests for production and authentication are better directed to the parties to those communications. -12- b. Section 2702 Of The SCA Is Consistent With The Fifth, Sixth, and Fourteenth Amendments To The U.S. Constitution The Court ofAppeal held that the SCA prohibits the disclosure ofthe contents of communicationsin responseto a pretrial subpoena, while expressly declining to hold anythingat all with respectto trial rights. (Facebook, supra, 240 Cal.App.4th at p. 225 [emphasizingthat “our rulingis limited to the pretrial context in whichthetrial court’s order was made”’].) The Court of Appeal did not “conclud[e] that criminal defendants possess federal constitutional rights to social media’s information regardless of the SCA’s statutory prohibition,” as amicus CACJ erroneously suggests. (CACJ Br., p. 11.) In any event, neither defendants nor amici have identified any authority establishing that they have a right to disclosure of the contents of stored communications, whether pretrial or during trial. Amici place principal reliance on the due process clause, suggesting that it is unfair for defendants to lack access to the contents of communications when the governmentcan obtain it with a search warrant. However, the Constitution does not require the defense and prosecution to have equivalent investigative tools. (See People v. Sutter (1982) 134 Cal.App.3d 806, 816 [“(A) criminal proceeding is not ‘symmetrical’ as the prosecution and defense have different rules, powers, and rights.”].) The government has many types of investigative tools, such as wiretaps and physical searches, which are unavailable to defendants. (Pierce, supra, 785 F.3d at p. 842, fn. 2 [noting that “the search warrant provisions of Fed.R.Crim.P. 41(b) and the wiretap applicationprovisions of 18 U.S.C. § 2516(1) both provide a meansfor the governmentto obtain evidence without a mechanism for defendants to do so”’].) Contrary to defendants’ claim that wiretaps are “irrelevant because the defense does not need those investigative tools to prepare fortrial” (see - -13- Reply Br. at p. 23), it is easy to imagine a case in which the defense might assert the need for a wiretap. For example, the defense might wantto record communications between witnesses believed to be colluding to present false testimony, or communications of a person suspected of hiding exculpatory evidence. Nevertheless, amici do not dispute that the Wiretap Act (or the California Invasion of Privacy Act) remain constitutional even though wiretap orders are available only to the government.” Likewise, the Court ofAppeal correctly rejected defendants’ arguments that applying the SCA in this case would violate their rights to confrontation, to compulsory process, to present a complete defense and to a fair trial. As the Providers have already explained, noneofthe cited constitutional provisionscreates a right to seek discovery from private parties. (AnswerBr. on the Merits at pp. 30-35.) Aside from general exhortations about the importance of constitutional rights, amici provide no authority to the contrary. CONCLUSION The judgmentofthe Court of Appeal should be affirmed. * In a footnote, the Court ofAppeal suggested that if § 2703(b)(1)(B) allowed the governmentto obtain content older than 180 days with trial subpoena,it would raise Fourth Amendment concerns. (Facebook, 240 Cal.App.4th at p. 225, n. 17.) But Warshak removed the government’s authority to use subpoenas for older content by holding that the Fourth Amendment requires a warrant for such content. (Warshak, supra, 631 F.3d at 288.) Moreover, the SCArequires state governmental agencies to comply with state law. (18 U.S.C. § 2703(a), (b) [requiring state legal process to be “issued using State warrant procedures”or authorized by “State statute”].) In California, the government must obtain a warrant for all electronic communications information. (Cal. Pen. Code § 1546.1(a), (b)(1)-(4).) -14- DATED: May 12, 2016 PERKINS COIE Lip By: Euec DUM, Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com Attorneys for Petitioners Facebook,Inc., Instagram, LLC, and Twitter, Inc. -15- WORD COUNT CERTIFICATION Pursuant to California Rules of Court, Rule 8.520(c), counsel of record herebycertifies that the foregoing Answer to Briefs of Amicus Curiae consists of 4,379 words, including footnotes, as counted by the Microsoft Word program usedto preparethis brief. DATED: May12, 2016 PERKINS COIE Lip By: Cnie. Dp tte Eric D. Miller, Bar No. 218416 EMiller@perkinscoie.com Attomeysfor Petitioners Facebook,Inc., Instagram, LLC, and Twitter, Inc. - 16- 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 not a party to the within action. My business address is Perkins Coie LLP, 505 HowardStreet, Suite 1000, San Francisco, CA 94105. Iam personally familiar with the business practice of Perkins Coie LLP. On May 12, 2016, I caused the following document(s) to be served on the following parties by the mannerspecified below: ANSWER TO BRIEFS OF AMICUS CURIAE 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 Ana Maria Gonzalez 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 Counselfor The People ofthe State ofCalifornia Counselfor Real Party in Interest Lee Sullivan (Case No. 13035657) Susan Kaplan 214 DuboceStreet San Francisco, CA 94103 sbkapl@yahoo.com Jose Umali 507 Polk Street, Suite 340 San Francisco, CA 94102 umali-law@att.net Superior Court of the City and County of San Francisco 850 Bryant Street San Francisco, CA 94103 Clerk of the Court Court of Appeal, First District, Div. 5 350 McAllister Street San Francisco, CA 94102 Donald E. Landis,Jr. Monterey County Assistant Public Defender 111 W. Alisal Street Salinas, CA 93901 landside@co.monterey.ca.us John T. Philipsborn Law Offices of J.T. Philipsborn 507 Polk Street, Ste. 350 San Francisco, CA 94102 jphilipsbo@aolcom David M.Porter Office of the Federal Public Defenders 801 I Street, 3rd Floor Sacramento, CA 95814 David Porter@fd.org Counselfor Real Party in Interest Lee Sullivan (Case No. 13035657) Counselfor Real Party in Interest Derrick Hunter (Case No. 13035658) Respondent Superior Court of the City and County ofSan Francisco Attorneysfor Amicus Curiae California Attorneyfor Criminal Justice Attorneysfor Amicus Curiae California Attorneysfor Criminal Justice Attorneysfor Amicus Curiae National Association of Criminal Defense Lawyers Jeff Adachi Public Defender Dorothy Bischoff Deputy Public Defender San Francisco Public Defender’s Office 555 Seventh Street San Francisco, CA 94103 Donald M.Falk Mayer Brown LLP Two Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 dfalk@mayerbrown.com Stephen P. Lipson Michael C. McMahon 800 S. Victoria Avenue Ventura, California 93009 michael.mcmahon@ventura.org Attorneysfor Amicus Curiae San Francisco Public Defender’s Office Attorneysfor Amicus Curiae Google Inc. Attorneysfor Amici Curiae California Public Defenders Association and Public Defender of Ventura County I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executed on May 12, 2016 at San Francisc¢ , Californj 4 SrDeCosta
