Based on an issue not raised by the parties, and avoiding constitutional questions, Supreme Court allows for some access to social media by criminal defendants

In Facebook Inc. v. Superior Court (Hunter), the Supreme Court today holds that federal law — the Stored Communications Act — does not bar Facebook and other social media service providers from complying with criminal defendants’ demand for “communications configured by a social media user to be public.”   But “restricted communications,” even those “sent to numerous recipients,” are another story, concludes the court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye.

All parties to the case had believed the legislation precluded all disclosure and the defendants argued that the assumed prohibition violated their federal constitutional rights under the Fifth and Sixth Amendment, an argument the superior court accepted.  Today’s more narrow statutory construction follows the court’s request for supplemental briefing on the issue and the parties’ agreement in those briefs about the lack of protection for public communications.  The court also rejected the social media providers’ claim that the criminal defendants had forfeited reliance on the narrower interpretation by not raising it below.  The court said, “When this court discovers a possible statutory interpretation question that may obviate the need to address a constitutional claim and solicits supplemental briefing on that issue, the statutory interpretation question is properly before us for resolution.”

Because the lower courts, like the parties, had proceeded based on a faulty statutory interpretation, the Supreme Court vacates the judgment of the First District, Division Five, Court of Appeal and it orders the case remanded to the superior court.  Doing so allows the Supreme Court to avoid addressing what it calls the “novel constitutional theory” under which the superior court had required disclosure.

It’s possible the court will reach the constitutional questions in another, similar Facebook case — Facebook v. Superior Court (Touchstone).  In that case, the court yesterday granted the San Diego District Attorney’s application to intervene and it deferred further briefing pending the finality of today’s decision.