As it did in a similar case two years ago, the Supreme Court today leaves unanswered constitutional and federal statutory questions about the ability of criminal defendants to obtain social media postings of others. Instead, the court’s opinion in Facebook, Inc. v. Superior Court (Touchstone) by Chief Justice Tani Cantil-Sakauye requires the superior court to take another look — using seven factors stated in the opinion — at a subpoena by a defendant in an attempted murder case who wants to look at restricted Facebook posts and private messages of a victim and crucial witness.
The first and most prominent factor, the court says, is, “Has the defendant carried his burden of showing a ‘ “plausible justification” ’ for acquiring documents from a third party.” The opinion concludes that, in the case before it, “it is questionable” whether there is a “substantial connection between the victim’s social media posts and the alleged attempted murder.”
The Chief Justice writes a 21-page concurring opinion to her opinion for the court. She discusses the unresolved issue whether the federal Stored Communications Act, which she says is outdated, applies to Facebook.
Justice Mariano-Florentino Cuéllar, who does not sign the court’s opinion, also separately concurs. He agrees with the Chief Justice’s concurrence about the importance of the issue whether the SCA offers any protection to Facebook.
The court directs the Fourth District, Division One, Court of Appeal, to remand the case to the superior court.
[August 14 update: Justice Cuéllar did sign the court’s opinion, making it unanimous. The court posted a corrected opinion today.]