FACEBOOK v. S.C.

Real Parties in Interest, Derrick D. Hunter and Lee Sullivan, Supplemental Brief

Cal.January 23, 2017

No. $230051 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA FACEBOOK,INC.,et al., Petitioners, Vv. SUPERIOR COURT OF THE STATE OF CALIFORNIA, SAN FRANCISCO SUPREME COURT Respondent. F | |. E DERRICK D. HUNTERand LEE SULLIVAN, JAN 23 2017 oo. Jorge Navarrete Clerk Real Parties in Interest. Deputy REAL PARTIES LEE SULLIVAN AND DERRICK HUNTER’S SUPPLEMENTAL BRIEF AS ORDERED BY THE COURT ON DECEMBER21,2016 From the Published Opinion of the Court of Appeal, First Appellate District, Division Five, No. A144315 San Francisco San Francisco Superior Court Nos. 13035657, 13035658.) The Honorable Bruce Chan, Judge, Dept. 22 JANELLE E. CAYWCOD SUSAN B. KAPLAN (CBN: 189980) (CBN: 57445) 3223 Webster Street 214 DuboceStreet San Francisco CA, 94123 San Francisco, CA 94103 Tel. (415) 370-2673 Tel. (415) 271-5944 Fax. (888) 263-0456 Fax. (510) 524-1657 Email: janelle@caywoodlaw.com Email: sbkapl@yahoo.com Attorney for Real Party Attorney for Real Party Lee Sullivan Lee Sullivan JOSE PERICLES UMALI (CBN:118434) 507 Polk Street, Suite 340 San Francisco, CA 94102 Tel. (415) 398-5750, Fax (415) 771-6734 Email: umali-law@att,net, Attorney for Real Party Derrick Hunter TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES.. 0.0.0.0... cece ee ee eee iv ARGUMENT .......0. 0 cee eeeee enter e eens 1 1. SOCIAL MEDIA POSTS MADE PUBLIC WHEN PUBLISHED ARE NOT PROTECTED BY THE SCA AND MUST BE DISCLOSED PRIOR TO TRIAL WHEN SUBPOENAED. SOCIAL MEDIA POSTS AND PRIVATE MESSAGES THAT ARE SUBJECT TO THE SCA, MUST BE PRODUCED TO SUPERIOR COURTS FOR AN IN CAMERA REVIEW PURSUANTTO PENNSYLVANIA yv. RICHIE AND DAVIS v. ALASKA, UPON A SHOWING OF GOOD CAUSE, TO DETERMINE IF RECORDS SHOULD BE PROVIDED TO THE DEFENDANTSTO PRESERVE THEIR CONSTITUTIONAL RIGHTS TO DUE PROCESS ANDA FAIR TRIAL, TO PRESENT A COMPLETE DEFENSE, TO EFFECTIVE ASSISTANCE OF COUNSEL, AND TO CROSS-EXAMINE ADVERSE WITNESSES 0...eeeee eens 1 A. Reneesha Lee and Joaquan Rice’s Public Posts on Twitter, Instagram, and Facebook Should Be Produced Prior to Trial Because Electronic Information Configured to Public at the Time of PostingDoes Not Fall Within the Ambit of the SCA .......... 0.0 .00.00008, 1 B. Social Media Posts to “Friends”, “Friends of Friends”, or “Followers” are Essentially Public Posts and Should Be Exempted from the SCA Because the User Has No Reasonable Expectation of Privacy in Posts Sentto the MASSES ....-ccee eee ee eee eee eee7 C. Because 18 U.S.C § 2702 is Not an Absolute Barto the . Dissemination of Private Electronic Records, the United States Constitution Mandates that the SCA Yield if the Records Sought Are Necessary For a Fair Trial......... 14 ii TABLE OF CONTENTS(CONT.) CONCLUSION ... 0.0.0.0:ceeee een tenes 22 ili TABLE OF AUTHORITIES Cases Page(s) Chaney v. Fayette County Pub. School (2013) 977 F.Supp 2d 1308 oo... ceeeeseseseeeseseseenseessneteetenenenens 10 Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010) 717 F.Supp. OX:Us |on11,12,14 Davis v. Alaska (1974) 415 U.S. 308 ...eeceeeeeeseeeeeeeeeerereeseeesessssnsnesesesteneeeees 18,19 Ehling v. Monmouth-Ocean Hosp. Serv. Corp (D.N.J 2013) 961 F.Supp.2d. 659.0...eeeete11,12, 14 Fawcett v. Altieri | (Supp. 2013) 960 N.Y.S. 2d 592.0...ceceteeesteseeseeeeieees 9 Guest v. Leis (6™ Cir. 2001) 255 F.3d 325 oo. cececeeeeeteeeetere eee eeseeseeeeennes 9 Konop v. Hawaiian Airlines, Inc., (9Cir. 2002) 302 F.3d 868 .......ceesseceeeeretseseeeteseneeteeneneserteeeees 5 Lockhart v. Fretwall (1993) 506 U.S. 364... cccsecseecsesetereeeeenensseetererenerenesetsenseneasenenens 11 Patterson v. Turner Construction Company (1% Dept. 2011) 88 A.D. 3d 931 oesesereeeeeeeererseteneeeneeteees9 Pennsylvania v. Ritchie (1987) 480 U.S. 39 v.ceeeceseeeteneteeenerensesceststecesnereeeneseasenenes 16,17,18 _ People v. Harris (Crim. Ct. N.Y. 2012.) 949 N.Y.S. 2d 590 0... eseeeeeeeeeteeerees 5 People v. Superior Court (Moore) (1996) 50 Cal. App. 4th 1202.0...cectrete reeeeieeeeeees 11. iv TABLE OF AUTHORITIES(cont.) Cases Page(s) Snow v. DirectTV, Inc., (11" Cir 2006) 450 F.3d 1314 occteeetter etter tee es4,5 United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173 oo. ccccccccsseeeeee terete teeeeteteeseeaeseseiees 8,9 United States v. Meregildo (2012) 883 F.Supp 523......ccccscscsceseseseeeeereteeeeeseeseeeseeeeneeeeans9,10 United States v. Steiger (11Cir. 2003) 318 F.3d 1039.0... ccceseeeteeeeereteteeeeteeneneetenes 12 Viacom Int’l v. YouTube Inc. (S.D.N.Y 2008) 253 F.R.D. 256...teetee teeters3,14 Federal Statutes 18 U.S.C. §§ 2510 ooeceecscecescesecssscssseeeesesseeeseaceeeesenerenaeeeseesenteereeneeens3 18 U.S.C. § 251 1(2)(g)e.cceseesssseeseesersereesensnsseenenesseersnenaesnernessererseaey4,5,12 18 U.S.C. § 2702 oo. eccccccccecc nee re ee ee etna nessa nn eeeee eee steers Passi Legislative History ELR. Rep. No. 99-647, (1986).....cccceceseeeseeenereeenenetssserseeeeneeseseees 3 Sen. Report No. 99-541, (1986)....ccccccecseseseeseereeseseretssenesseeesseeenees2 131 Cong. Rec. S11790-03 (1985)... ceesseeeeeeeeteeeeeeterseeerseressenssens3 131 Cong. Rec. E4128 (1985) ....ccccceeeeeeeeeneneeeesenesseesseseensnseseneees3 132 Cong. Rec. H4039, (1986 ) ....ceseceetereeeseereneesessetssseseeentneeseseseres2 TABLE OF AUTHORITIES(cont.) Articles Edwards, Ben. J.; The Lost Civilization ofDial-Up Bulletin Board Systems, The Atlantic, Nov, 4, 2016.0... scsssssseetessseeseeeneeens 13 Zwillinger, Marc J., Genetski, Christian S.; Criminal Discovery ofInternet Communications Under the Stored Communications Act: It’s Not a Level Playing Field, Journal of Criminal Law and Criminology, Northwestern University School of Law, Vol. 97, No. 2, 2007.0 ..ccccecceccscsccsssceseeseeseeeeseesscsassesescnsceeeeeseesesneeesserseseaeenaes 2, 20,21 vi ARGUMENT I. SOCIAL MEDIA POSTS MADE PUBLIC WHEN PUBLISHED ARE NOT PROTECTED BY THE SCA AND MUST BE DISCLOSED PRIOR TO TRIAL WHENSUBPOENAED. SOCIAL MEDIA POSTS AND PRIVATE MESSAGES THAT ARE SUBJECT TO THESCA, MUST BE PRODUCED TO SUPERIOR COURTSFORAN IN CAMERA REVIEW PURSUANT TO PENNSYLVANIA v. RICHIE AND DAVIS vy. ALASKA, UPON A SHOWING OF GOOD CAUSE, TO DETERMINE IF RECORDS SHOULD BE PROVIDED TO THE DEFENDANTSTO PRESERVE THEIR CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL, TO PRESENT A COMPLETE DEFENSE, TO EFFECTIVE ASSISTANCE OF COUNSEL, AND TO CROSS- EXAMINE ADVERSE WITNESSES A. Reneesha Lee and Joaquan Rice’s Public Posts on Twitter, Instagram, and Facebook Should Be Produced Prior to Trial Because Electronic Information Configured to Public at the Time of Posting Does Not Fall Within the Ambit of the SCA Defendants Sullivan and Hunter assert that public postings of social media do not fall within the ambit of 18 U.S.C. § 2702 which prohibits providers from disseminating content-based electronic communications to citizens other than law enforcement. (18 U.S.C § 2702.) The Stored Communications Act (“SCA”) was enacted by Congress in 1986 as part of the Electronic Communications Privacy Act (ECPA). (See Pub.L. No.99- 508,100 Stat, 1848.) Title Il of the ECPA contains the SCA, which was designed to “address [] access to stored wire and electronic communications and transactional records.” (Sen. Report, 99-541, at 3 (1986).) Specifically, the legislative history makesit clear the ECPA was enacted to update the then existing federal wiretap law by bridging the gap in the Fourth Amendment, which only protected the privacy of physical locations such as “persons, places, and things” not necessarily the growing number of electronic communications stored by third-parties. (See 132 Cong. Rec. H4039 (1986) [statement of Rep. Kastenmeier; see also Sen Rep. No. 99- 541, at 3-5.) “Privacy cannot be left to depend solely on physical protection, or it will gradually erode as technology advances.” (Sen. Rep, No. 99-541, at 5 (1986).) The SCA was meantto “fill precisely this gap, and in essence, to create a Fourth AmendmentLite by statute.” (Zwillinger, Marc J., Genetski, Christian 8.; Criminal Discovery ofInternet Communications Under the Stored Communications Act: It’s Not a Level Playing Field, Journal of Criminal Law and Criminology, Northwestern University School of Law,p. 576, Vol. 97, No. 2, 2007.) At the time the SCA wasenacted in 1986, electronic person-to-person communications“wasat its nascent stage, andlarge scale third party data storage and processing was only an emerging business.” (/d. at 573, fn. omitted.) The SCA wastherefore conceived before the World Wide Web,and certainly did not contemplate the use of Yahoo!, Gmail, Hotmail, much less social media such as Facebook, Twitter, and Instagram. The ECPA’s legislative history makesit clear that electronic records madereadily available to the public are not protected by the SCA. For example, the legislative history states that “a subscriber whoplaces a communication on a computer ‘electronic bulletin board’ with a reasonable basis for knowing that such communicationsare freely made available to the public, should be considered to have given consentto the disclosure of use of the communication.” (H.R. Rep. No. 99-647, at 66 (1986).) Moreover, since its inception, the ECPA provided "several clear exceptions to the bar on interception so as to leave unaffected electronic communication made through an electronic communication system designed so that such communication is readily available to the public." (131 Cong. Rec. $11790-03 (1985) [statement of Sen. Leahy on bill that wasthe precursor to the ECPA]; see also 131 Cong. Rec. E4128 (1985) [statement of Rep. Kastenmeier on the samebill]; See also Viacom Int’v. YouTube Inc. (S.D.N.Y 2008) 253 F.R.D. 256.) Indeed, the provision of the ECPA governing federal wiretaps also explicitly states: "It shall not be unlawful under this chapter [18 U.S.C. §§ 2510 et. seq.] or chapter 121 of this title [referring to the SCA at 18 U.S.C. §§ 2701, et. seq.] for any person-(I) to intercept or access an electronic communication made through an electronic communication system thatis configured so that such electronic communication is readily accessible to the generalpublic ." (18 U.S.C. § 2511(2)(g), emphasis added). Thus, the legislative history and the statutory scheme under the ECPAclearly show that Congress did notintendto criminalize or create civil liability for acts of individuals who intercept or access communications that are otherwise readily accessible by the general public. Accordingly, we agree that social media posts made public at the time they were configured do not fall within the ambit of 18 U.S.C. § 2702, the provision of the SCA which prohibits providers from disclosing of content-based electronic records except to the government under a myriad of enumerated exceptions. This Court has askedthe parties to address cases which have interpreted the SCA to meanthat electronic informationis statutorily protected so long as the communicatoractively restricts the public from accessing the information. For example, in Snow v. DirectTV, Inc., (1 1" Cir 2006) 450 F.3d 1314, the court held “an express warning on an otherwise accessible webpage”is insufficient to give rise to SCA protection becauseit did to restrict access to the public. In Snow, the plaintiff sued DirectTV under the SCA for accessing his website and computerbulletin board. The federal appellate court affirmed the order dismissing the case for failure to state a claim because the SCA only appliesifthe public is generally restricted from accessing the website. (/d. at 1321-1323.) In Snow, any memberof the public could access the bulletin boards by creating a password and clicking to agree to acceptthe termsofthe web site. (/d. at 1321.) The court ruled, “In order to be protected by the SCA,an internet website must be configured in some wayso as to limit ready access to the general public.” (/d. at. 1322.) In so ruling, the Snow court distinguished Konop v. Hawaiian Airlines, Inc., (9Cir. 2002) 302 F.3d 868. In Konop,plaintiffKonop created a list of Hawaiian Airlines employees who wereeligible to access the website criticizing the airlines. (Jd. at 872.) To gain access,one had to enter an eligible employee's name, create a password, and click "SUBMIT" indicating acceptance of the terms and conditions, which prohibited users from disclosing the website's contents and prohibited viewing by Hawaiian Airlines management. (/d. at 872-873.) Konop’s website, unlike Snow’s, required users wishing to view the bulletin board, to have knowledge not readily available to the public, such as the eligible employee’s name. In Konop, the communicationsfell within the ambit of the SCA (though an exception was foundto apply) because the records were restricted. Ud.) - The notion that public social media posts do notfall within the ambit of the SCA is further supported by People v. Harris (Crim. Ct. N.Y. 2012.) 949 N.Y.S. 2d 590. In Harris, the defendant in a criminal case was charged with disorderly conduct. (/d. at 591-592.) The prosecutor sent a subpoena to Twitter seeking the defendant’s tweets and account information because it was relevant to the ongoing investigation. (Jbid.) The defendantfiled a motion to quash which was denied. (/d. at 592.) Twitter was served with the order to produce the records and thereafter moved to quashthe trial subpoena on groundsthe records were protected by the SCA. (Ibid.) The court ordered the records produced holding there is no reasonable expectation ofprivacy in “a tweet sent around the world.”(/d at. 593.) Specifically, the court ruled defendant’s Fourth Amendmentrights were not violated because the Fourth Amendmentdoesnot protect information in the handsofthird parties and becausethere is no reasonable expectation of privacy in tweets the user has made public, evenif later deleted. (/d. at 594.) “Ifyou post a tweet, just like if you scream it out the window,thereis no reasonable expectation of privacy. There is no proprietary interests in your tweets, which you have now gifted of the world.” (/bid.) Snow and Harris support the notion that social media posts made with privacy settings configured to public, do not fall within the ambit of the 18 U.S.C. § 2702 of the SCA because the general public had ready access to them when they were posted. In light of the foregoing, the providers must produceall of Joaquan Rice and Reneesha Lee public posts on Facebook,Instagram, and Twitter pursuant to subpoena. Ms. Lee cannot produce them because she has deleted many of her accounts and has asserted her Fifth Amendmentrights when asked to authenticate the social media records. Mr. Rice cannot produce his public posts because heis deceased. The records must comefrom the providers who are the custodian ofrecords given many of the accounts are now deleted. B. Social Media Posts to “Friends”, “Friends of Friends”, or “Followers” are Essentially Public Posts and Should Be Exempted from the SCA Because the User Has No Reasonable Expectation of Privacy in Posts Sent to the Masses Whenthe SCA wasenacted in 1986, neither the World Wide Web nor social mediahad been invented. As discussed, ante, both the legislative history as well as 18 U.S.C § 2511(2)(g) establish that electronic communications made public are not subject to the SCA. Similarly, posts to hundreds or thousandsof “friends”, or “friends of friends”, are essentially public given there is no restriction on the receivers of the posts from disseminating that information to othersstill. The user loses control over dissemination once the information is posted. Given that both social media smart cellular telephone applications (“apps”) and smart phonesare used by virtually all citizens of modest meansin the United States, it is commonly understood that posts limited to one’s 500 closest “friends” can be instantly disseminated to unknownothersifthe user’s “friend” takes a screen shot of the post with a smart phone and thereafter shows, texts, or emails that image to others with whom the user is not connected. Thus, once a photographorpostis posted to a large group of followers, that user has no reasonable expectation of privacyin that post since there is no restriction on its subsequent dissemination by “friends” and “followers.” Neither social media platforms, social media cellular telephoneapps, nor “smart” cellular telephones, were contemplated by the drafters of the SCA whenit was enacted. This technology is too different to fit squarely under the SCA which did not concern electronic records that were widely disseminated. Therefore, when a provider receives a subpoenafor posts madeto a large group, the SCA should be deemedinapplicable because social media posts to large groups are essentially public posts in which the user has no reasonable expectation ofprivacy. In other contexts, courts have emphasized that social media posts are not entitled to heightened privacy protections just because theyare limited to “friends.” Generally, people have a reasonably expectation ofprivacy in the contents of their home computers. (See United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173, 190.) However,this expectation is not absolute and may be extinguished when a computer user transmits information over the internet. (/d. at 190; see also Guest v. Leis (6" Cir. 2001) 255 F.3d 325, 333.) In Patterson v. Turner Construction Company (1* Dept. 2011) 88 A.D. 3d 931, the appellate division held that the materials posted on a Facebook page would notbe shielded from discovery in a civil case “merely becauseplaintiff used the service’s privacy settings to restrict access” ifa showing is made that the records sought are material and relevantto the litigation. (Ibid.) In Fawcett v. Altieri (Supp. 2013) 960 N.Y.S. 2d 592,the court held that social media accounts are freely discoverable and do not require court orders to disclose because social media subscribers “share | their political views, vacation pictures, and various other thoughts and concernsthat subscribers deem fit to broadcast to those viewing the internet. Whether these broadcasts take the form of ‘tweets,’ or postings to a user’s ‘wall,’ the intent of the users is to disseminate this information.” (Id. at 596.) Therefore, the court reasoned, these materials should be producedin civil discovery, even if the social media posts are closed or private, if material and necessary to the case. (/d. at 597-598.) Also, instructive is United States v. Meregildo (2012) 883 F.Supp 523. There, defendant Colon moved to suppress evidence the government had obtained from his Facebook accountby getting one ofhis “friends” to give the government access to defendant’s account. (/bid.) Thedistrict court denied the motion holding that the defendant did not have a reasonable expectation of privacy in Facebookposts he shared with “friends” but not the public at large. (/bid.) In so ruling, the court stated as follows: While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had nojustifiable expectation that his "friends" would keep his profile private. [citation omitted.] And the widerhis circle of "friends," the morelikely Colon's posts would be viewed by someonehe never expectedto see them. Colon's legitimate expectation of privacy ended when he disseminated posts to his "friends" because those "friends" were free to use the information however they wanted—including sharingit with the Government. Cf. Guest, 255 F.3d at 333 (finding that an e-mail sender—likea letter writer—loses their expectation of privacy upon delivery). When Colon postedto his Facebookprofile and then shared those posts with his "friends," he did soat his peril. (Ud. at 526; see also Chaney v. Fayette County Pub. School (2013) 977 F.Supp 2d 1308, 1315 [no reasonable expectation of privacy in Facebook posts shared with “friends of friends” because she made her information available to hundreds or thousands of people she did not know.] Similarly, Reneesha Lee and Joaquan Rice’s social mediaposts that are not public, but disseminatedto large groups of“friends” and “followers,” or “friends offriends,” should not be protected by the SCA because they have no reasonable expectation ofprivacy in posts they 10 disseminate to masses. These records are not private because “friends” and “followers” have the unfettered discretion to share and disseminate their posts evenif restricted when published. Social media posts to the masses should not fall within the ambit of the SCA because they are essentially public posts. The SCA does notprotect electronic records that are publicly available. Social media posts to large groups are tantamount to public posts are not subject to the protections of the SCA. To that end, we disagree with the holdings in Ehling v. Monmouth- Ocean Hosp. Serv. Corp (D.N.J 2013) 961 F.Supp.2d. 659 and Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010) 717 F.Supp. 2d. 965, which held that non-public social media posts to “friends”falls within the ambit of the SCA because the user made some attemptto restrict access. We note thatin the absence of a Supreme Court opinion onpoint, this Court is not bound by the decisions of lower federal courts, even on federal questions.” (People v. Superior Court (Moore) (1996) 50 Cal. App. 4th 1202, 1211; see also Lockhart v. Fretwall (1993) 506 U.S. 364, 376, conc. opn. J. Thomas.) Realparties assert that social media posts to large groups of “friends” or “followers” but not made completely public, cannot be subject to the SCA on the theory that social media platforms are analogousto outdated computer bulletin boards systems (BBS) as asserted by Crispin, 11 supra, 717 F.Supp 2d 965, 981, and Ehling, supra, 961 F.Supp.2d. 659, 666-667. This is an area of law few courts have addressed. Real parties contend that social media posts disseminated to large groups of friends and followers are not subject to the SCA under 18 U.S.C. § 2511(2)(g)(1), whichstates that it is not unlawful under the federal wiretap statute or the SCA to access electronic communicationsthat are readily available to the public. (Ibid.) We contend posts made available to a large group of people through social mediaapps, and cellular telephonesthat accessthe internet and have the capacity to screen shot any image, render these posts open to the public sinceall users know that any “friend” or “follower” can view the post and immediately disseminate it withoutrestriction by the original poster. This technology is vastly different than the nearly obsolete computer bulletin board systems of the 1990's, used at a time when there were no smart phones with ready internet access and only a comparatively small numberofpeople had the technical ability or equipmentto access these boards. “A computer bulletin board system is a computer program that simulates an actual bulletin board by allowing computer users who access a particular computer to post messages, read existing messages, and delete messages.” (United States v. Steiger (11" Cir. 2003) 318 F.3d 1039, 1049.) 12 Computer bulletin board systems, used cumbersomedial-up technology through the telephone system that became nearly obsolete in the late 1990's with the advent of the World Wide Web. Today, the media often calls BBSes an internet-before-the-internet. But that is a grossly inaccurate characterization. The internetis a global network ofbillions of computers, across which data flows like water. BBSesare like remote Pacific islands, each populated with pocketcivilizations that communicate reluctantly via message-in-a-bottle. Over a telephone line, bandwidth is lean and every bit counts. (Edwards, Ben. J.; The Lost Civilization of Dial-Up Bulletin Board Systems, The Atlantic, Nov, 4, 2016.) Posts to large groups on social media are greatly distinguishable from private computer bulletin boards. Billions more consumers use social media platforms than bulletin boards of decades past. Now, even semi-public posts to groups can be madeinstantly public through the explosion of smart phonesthat can accessthe internet, take screen shot posts, and disseminate the images in seconds. This technology was not in existence when computer bulletin board systems were used in the 1990's much less when the SCA was enacted in 1986. Thus, it was reasonable to expect that bulletin board users’ information would be relatively private andthe likelihood of mass dissemination in seconds with a few clicks, was impossible. Now,reasonable persons assumethat anything one posts on social media to a large groups can and will be disseminated in 13 the public realm. Accordingly,real parties assert that the SCA does not cover social media posts because users do not have a reasonable expectation of privacy information they share online with the massesand electronic communications made publicly available are not protected by the SCA. Evenif this Court finds that social media wall posts configured to be accessible only to “friends” and “followers” are subject to the SCA under rationale of Crispin, supra, 717 F.Supp 2d 965, 981, Ehling, supra, 961 F.Supp.2d. 659, and Viacom, supra, 253 F.R.D. 256, which held that YouTube videosrestricted to “friends” could not be subjectto a civil subpoena under 18 U.S.C. § 2702(a), a superior court judge maystill conduct an in camera review ofprivate electronic records upon and showing of good cause, and may provide those recordsto the defendantif necessary to enforce the panoply of constitutional rights afforded to criminal defendants facing a criminaltrial. C. Because 18 U.S.C § 2702 is Not an Absolute Bar to the Dissemination of Private Electronic Records, the United States Constitution Mandates that the SCAYield if the Records Sought Are Necessary For a Fair Trial California Courts are under the solemn duty to ensure that Mr. Sullivan and Mr. Hunter receive fair trial, and have accessto the evidence they need to mounta defense and cross-examination as guaranteed by the United States Constitution. Reneesha Lee tweeted information relevant to 14 impeach her with acts of violence and corroborated the defense theory that she implicated Mr. Sullivan in the murder because she believed he had been involved with another woman. These tweets provide good cause to order the production ofher Twitter, Facebook, and Instagram accounts, not only to lay a foundation for the records we do have butalso to request the superior court to conduct an in camerareview for evidencepertinentto the defense located on other social media platforms that law enforcementdid not obtain by search warrant. Ms. Lee’s social media records are particularly critical for defendant Hunter, because his defenseis that Ms. Lee was the getawaydriver, not Hunter. Similarly, in order to demonstrate good cause for the production of Joaquan Rice’s social mediarecords, the defense produced a few of Joaquan Rice’s Facebook videos andposts to the superior court relevant to show that the murder was caused not because of a gang dispute as the prosecutor contended, but because the decedent had beenthreatening children online, and Q. Hunter shot Rice because Q. Hunter wasafraid due to a personaldispute. Importantly, the defense subpoenaed records from Rice’s Instagram and Twitter accounts, that were not obtain by law enforcement’s search warrant. 15 Insofar as the social media communicationsfall within the ambit of the protections of the SCA, such as private messages, this Court can and must permit the superior court to conduct an in camera review of Rice and Lee’s social media accounts and order the production of records necessary to ensure Mr. Sullivan and Mr. Hunterreceive fair trial at a time when they can mount a meaningful defense subject to any protective orders deemednecessary to protect privacy rights of Ms. Lee and Mr. Rice’s estate. Because 18 U.S.C. § 2702 is not an absolute bar to production to electronic records, but contains numerous exceptions for law enforcement, the United States Supreme Court’s decision in Pennsylvania v. Ritchie (1987) 480 U.S. 39, permits this Court to order an in camerahearingto examine the records and disclose exculpatory evidence to the defense. In Pennsylvaniav. Ritchie, the United States Supreme Court held that a criminal defendant’s right to due process and to receive a fair trial guaranteed by the Fifth Amendment,as well as the right to secure evidence to present a complete defense under the Sixth Amendment trumps a victim’s privacy rights in Child Protective Service records. There, the defendant was charged with committing sexual offenses againsthis daughter and sought to examineconfidential records concerning her 16 compiled by the state protective services agency in which the state statutory schemeprohibited disclosure to the public. The defendant claimedthefile “might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence.” (/d. at 44.) The United States Supreme Court determined thatthetrial court had erred by denying the request without inspecting the file, reasoning that the principle of due process of law requires the governmentto disclose evidencethat is helpful to the accused. (Id. at 57.) Because pertinent state statutes provided certain exceptions to the generalrule of confidentiality for the recordsat issue, including one applicable whena court of competentjurisdiction orders their disclosure, there was no absolute barto disclosure and the defense was entitled to evidence in the confidential file helpful to the accused. (id. at 58.) In so ruling, the Court stated as follows: Given that the Pennsylvania Legislature contemplated someuse of CYS records in judicial proceedings, we cannot concludethat the statute prevents all disclosure in criminal prosecutions. In the absenceofany apparent state policy to the contrary, we therefore have no reason to believe the relevant information should not be disclosed when a court of competentjurisdiction determines the information is material to the defense of the accused. (/d at 58.) The United States Supreme Court concluded the defendant was entitled to have the confidential file reviewed by the trial court to determine 17 whetherit contained information that would have impacted the outcome of the trial. If so, the defendant wasentitled to a new trial. (/d. at 58.) Here, like the Pennsylvaniastatute, the 18 U.S.C. § 2702is not an absolute bar to the use social media recordsin criminaltrials. For example, prosecuting agencies can obtain electronic records with a service provider by obtaining a warrant or subpoena under 18 U.S.C. § 2702(b)(ii) and 18 U.S.C § 2703(d) for use in criminal trials. Under the rationale of Pennsylvaniav. Richie, given that the SCA is not an absolute ban on using social media recordsin criminaltrials as it does not impinge on the prosecution’s ability to obtain social media records, the SCA must yield to a defendant’s constitutional right to a fair trial and to present a complete defense. Here, under the SCAthere is “noclear... policy of ‘absolute’ confidentiality” but rather a one-sided, arbitrary, and unconstitutional preference that the government, but not the defense, is entitled to access to relevant electronic evidence. The SCA mustyield to afford superior courts the opportunity to conduct an in camerareview to locate exculpatory evidence relevant to the defense. Similarly, the SCA must yield to protect the defendants’ constitutional rights, which are paramount, under Davis v. Alaska (1974) 18 415 U.S. 308. In Davis, the United States Supreme Court held a criminal defendant’s constitutional right to cross-examine witnesses trumped a state law declaring juvenile records to be confidential and notto be disclosed to the public. Specifically, the trial judge prohibited defense counsel from questioning a witness aboutthe latter's juvenile criminal record, because a state statute madethis information presumptively confidential. The United States Supreme Court foundthatthis restriction on cross-examination violated the Confrontation Clause, despite Alaska’s legitimate interest in protecting the identity ofjuvenile offenders. (/d. at 318-320.) The confrontation clause of the Sixth Amendment, the Supreme Court wrote, entitled the defendant to expose the possible bias of a key prosecution witness despite Alaska’s confidentiality statute. In reversing the defendant’s conviction, the Court ruled as follows: The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding ofso vital a constitutional right as the effective cross-examinationfor bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to makeoutits case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State's interest in the secrecy ofjuvenile criminal records. Similarly, Mr. Sullivan and Mr. Hunter’s right to due process, to present a complete defense, and to procure records necessary to cross- 19 examinethe witnesses, must prevail overstatutory privacy rights underthe SCA. It is well-settled that when enacting the SCA, Congress simply failed to take into consideration criminal defendants constitutional right to access electronic records that are necessary to receivea fair trial. (See Zwillinger, MarcJ., Genetski, Christian S.; Criminal Discovery ofInternet Communications Under the Stored Communications Act: It’s Not a Level Playing Field, Journal of Criminal Law and Criminology, Northwestern University School of Law, P. 569, Vol. 97, No. 2, 2007.) According to Professor Christian Genetski and Marc J. Zwillinger, both ofwhom worked for the United States Departmentof Justice in the Computer Crime and Intellectual Property Section, the SCA isripe for a constitutional challenge because criminal defendants havenoability to compel disclosure of potentially exculpatory evidence in the hands of a third party. Ud at. 569- 570.) The authors reviewed the Legislative History of the SCA and concluded a criminal defendant’s constitutional rights to evidence was simply overlooked,not intentionally excluded, because Congress was focused on Fourth Amendmentissues which constrain only government searches. (Id. at 577.) The authors proposeda statutory amendmentto the ECPAto permit criminal defendants to procure electronic records needed to 20 defend a criminal case. (/d. at 597.) In conclusion, the authors stated as follows: Congress’ singular focus [in enacting the SCA] ontheinterplay between ISPs and government requests for electronic content, however, hasleft at least one gap that remains tobefilled. The presentinability underthe SCA for criminal defendants, and to a lesser extent, civil litigants, to compel disclosure of electronic content from ISPsraises the specter of constitutional issues that the SCAto date has successfully mooted. As proposed herein, a simple amendmentto the SCA that provides private parties the means to seek disclosure of content in appropriate cases, in keeping with appropriate safeguards,will clarify the law on an issue of growing contention, level the playing field for criminal defendants, and ensure the SCA’s continuedrole as the preeminentarbiter of rights to remotely stored electronic content. (Id. at 598-599.) Thirty-one years have elapsed since the SCA wasenacted and there is no sign that Congress intends to amendthestatute to afford criminal defendantsthe right to access electronic records necessary to defend a criminal case in accordance with the panoply of rights guaranteed by the United States Constitution. Access to records protected by the SCAis too important for the Court to side-step the constitutional issues. We have already waited too long. In cases throughout California and United States, criminal defendants are routinely being denied accesstocritical, exculpatory evidence because an-entire body of evidence remainsbarred. This case is not simply anintellectual issue about internet privacy, but a 21 matter or life and death for so many whoare fighting for their lives in a criminal justice system that is already weighed down with racial and economic inequities. CONCLUSION Defendants Sullivan and Hunter respectfully requests that this Court order public social media records produced forthwith. For records deemed protected by the SCA,defendants request that the providers be ordered to producethe recordsfor an in camerareview,andthatthe superior court be ordered to produce exculpatory records to the defense subject to protective orders to safeguardthe privacy of the accountholders. Respectfully submitted this 23rd day /V, 17. { 22 By: JANPTLE E.CAYWOOD Attornéy for Real Party in Interest LEE SULLIVAN et B. KAPLAN noms for Real Party in Interest Ve JOSE PU AttoyfreParty in Interest DE K HUNTER CERTIFICATION I herebycertify that Real Parties Supplemental brief consists of 5002 words and that the font used was 13-point Times New Roman. Dated: January 23, 2017 wv (No JANELLE E. CAYWOOD Attefney for Real Party Lee Sullivan PROOFOF SERVICE BY U.S. MAIL Re: Facebook v. Superior Court No. 8230051 I, JANELLE E. CAYWOOD,declare that I am over18 years of age and not a party to the within cause; my business address is 3223 Webster Street, San Francisco, California 94123. On January 23, 2017, I served a REAL PARTIES LEE SUL LIVAN AND DERRICK HUNTER’S SUPPLEMENTALBRIEF AS ORDERED BY THE COURT ON DECEMBER21, 2016, on eachofthe following by placing a true copy thereof enclosed in a sealed envelope with postage fully prepaid and deposited in United States mail addressed as follows: Heather Trevisan Office of the San Francisco District Attorney 850 Bryant Street, Third Floor San Francisco, CA 94103 James Snell Perkins Coie, Llp. 3150 Porter Drive Palo Alto, CA 94304 Eric Miller John Tyler Perkins Coie, Llp. 1201 Third Avenue, Suite 4900 Seattle Washington 98101 Donald M. Falk Mayer Brown, LLP Two Palo Alto Square 3000 El Camino Real Palo Alto CA 94306 Hon. Bruce Chan San Francisco Superior Court 850 Bryant Street, Third Floor San Francisco, CA 94103 Court of Appeal, First District Division Five 350 McAllister Street San Francisco, CA 94102 Donald Landis Monterey County Public Defender 111 W.Alisal Street Salinas, CA 93901 Jeff Adachi Michael McMahon Dorothy Bischoff 800 S. Victoria Street San Francisco Public Defender’s Office Ventura, CA 93009 555 7" Street San Francisco, CA 94103 John Phillipsborn David Porter 507 Polk Street, Suite 350 Office of the Federal Public Defender San Francisco, CA 94102 801 I Street, 3° Floor Sacramento, CA 95814 I declare under penalty that the foregoingis true and correct. Executed this 26th day of January 23, 2017, at San Francisco, Cali SANELIE CAYWOOD ii