Is “Public” Content Hosted by Social Networks and Other ISPs Protected by the Stored Communications Act?
In a pair of rulings, the Minnesota Court of Appeals avoided review of a trial court’s decision on the important but rarely-litigated issue of when “publicly” posted social media content is subject to the protections of the Stored Communications Act. Facebook, Inc. v. Aguayo-Gomez, Case No. A13-0177 (Minn. Ct. App. Feb. 12, 2013) & Facebook, Inc. v. Aguayo-Gomez, Case No. A13-0579 (Minn. Ct. App. May 1, 2013). While it did not address that issue directly, the Court of Appeals did provide some answers for criminal defendants seeking data held by electronic communications services. Under the SCA, only the government can obtain the contents of communications directly from an ECS—criminal defendants may not. 18 U.S.C. § 2703(a). In Aguayo-Gomez, the lower court tried to allow the defense to obtain materials directly from Facebook by ordering the prosecutor to get a subpoena to retrieve the records. The Minnesota Court of Appeals rejected that method, instead holding that requiring Facebook, an out-of-state party, to produce the photos would be unreasonable because they were in the control of the alleged victim, a Minnesota resident, who could be required to comply with a subpoena. While not based on the SCA, the Court’s order provides an answer for criminal defendants seeking the contents of communications from a provider: subpoena the account holder, not the provider.
In Aguayo-Gomez, the defendant—charged with domestic assault and a firearms violation—claimed the alleged victim had shared an exculpatory photo on Facebook with audience settings set to “public.” To get this evidence, the defendant served Facebook with a subpoena to compel production of photos the victim had shared with a “public” audience within a 3-month period.
Facebook refused to produce the photos, arguing the SCA barred it from providing the contents of a user’s account in response to a subpoena issued on behalf of a private individual. The defendant then moved to compel production.
The trial court required Facebook to comply with the subpoena. Minnesota v. Aguayo-Gomez, No. 62-CR-11-8978 (Minn. Dist. Ct. Jan. 12, 2013). The court first looked to Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal 2010), which held that § 2702(a) prohibits social networking sites from disclosing content such as messages, wall posts, and photos without a valid law enforcement subpoena—if the user has restricted the audience to be less than the public at large. The Court distinguished Crispin, finding that the defendant was seeking only content that had been shared with a “public” audience. Therefore, the court ordered Facebook to comply with what it determined was a valid subpoena under Minnesota law and produce photos posted publicly.
Interestingly, the trial court also found that, as a matter of Minnesota law, the state’s attorney was required to seek to obtain the requested photos as part of its duty to “search for the truth,” even if it would not help its case. The court determined that the defendant had made a sufficient showing that the photo would have exculpatory value and assist the defense in preparing its case. It therefore ordered the prosecutor to issue a subpoena requiring Facebook to produce the photos, meaning that Facebook would be required to comply even if photos with a “public” audience are content subject to Section 2702(a).
Facebook appealed the trial court’s ruling. The Minnesota Court of Appeals ruled that the defendant had not properly served the subpoena under Minnesota law, so it was not required to review the court’s ruling on the SCA issue. Facebook, Inc. v. Aguayo-Gomez, Case No. A13-0177 (Minn. Ct. App. Feb. 12, 2013).
Both the defendant and prosecutor then reissued subpoenas to Facebook. A different Minnesota trial judge then ruled that the reissued subpoenas were invalid because they lacked specificity. However, Facebook was ordered to produce the photos for an in camera review by the court. Facebook appealed and again raised a challenge under the SCA, supported by amicus briefs from the Battered Women’s Legal Advocacy Project, The Minnesota Coalition Against Sexual Assault, and The Minnesota Alliance on Crime.
The Minnesota Court of Appeals once again found state law grounds mooting the SCA issue. The court ruled that requiring Facebook, an out-of-state party, to produce the photos would be unreasonable because they were in the control of the alleged victim, a Minnesota resident who could be required to comply with a subpoena. Facebook, Inc. v. Aguayo-Gomez, Case No. A13-0579 (Minn. Ct. App. May 1, 2013).
Although the appellate court’s rulings did not reject the trial court’s reasoning on the SCA issue, future cases will be needed to determine the applicability of Section 2702(a) to social media or other content with a “public” audience. At the same time, however, the appellate court’s rulings provide answers for criminal defendants seeking contents of electronic communications—subpoena the account holder, not the provider.