By Marisa Kendall, From The Recorder

SAN FRANCISCO — In a decision fleshing out the rights of accused criminals in the social media age, a California appeals court ruled Tuesday that Facebook, Twitter and Instagram don’t have to honor subpoenas from criminal defendants seeking private user information.

The First District Court of Appeal found that, although prosecutors with a warrant can mine social media sites for evidence to put on their case, federal Internet privacy laws prevent criminal defendants from doing the same. Justice Terence Bruiniers, writing for a unanimous panel, found that quashing the subpoenas of two men charged with murder was required by the federal Stored Communications Act and would not jeopardize their constitutional right to a fair trial. But the justices made clear that their opinion only applies to pretrial discovery, leaving the door open for the defendants to try again during their upcoming trials.

“The consistent and clear teaching of both the United States Supreme Court and California Supreme Court jurisprudence is that a criminal defendant’s right to pretrial discovery is limited, and lacks any solid constitutional foundation,” Bruiniers wrote. “Simply alleging that the material they seek might be helpful to their defense does not meet defendants’ burden to show that the [Stored Communications Act] is unconstitutional in denying them access to protected information at this stage of the proceedings.”

The decision reversed the San Francisco Superior Court.

San Francisco solo Janelle Caywood, who represents defendant Lee Sullivan, said her team plans to seek review from the California Supreme Court. The case represents a crucial issue of first impression in California, she said, because prosecutors are relying on social media evidence more frequently, especially in gang cases.

“It’s everywhere,” Caywood said, “and our clients are not getting fair trials because we don’t have access to the same evidence that the prosecutors do.”

San Francisco Public Defender Jeffrey Adachi filed a brief backing the defendants, as did public defenders from Ventura and Monterey.

Perkins Coie partner James Snell argued on behalf of Facebook Inc., Twitter Inc. and Instagram, who moved to quash defense subpoenas under the Stored Communications Act. The law prohibits service providers from divulging their users’ electronic communications outside of limited situations. A Facebook spokesman said the company is pleased with the decision. “People’s online information deserves to be protected from unjustified searches,” he wrote in an emailed statement, “and we will fight to defend the privacy protections granted under the law.”

The case stems from gang-related murder indictments against Sullivan and Derrick Hunter, who are accused of killing a man and seriously injuring a minor during a 2013 drive-by shooting in San Francisco.

Social media has been a focal point of the case, and possibly was a catalyst in the killing. Hunter’s 14-year-old brother, who was found guilty of murder and attempted murder in juvenile court, told police he shot the victim as retribution for threats on Facebook and Instagram. Prosecutors used social media records as evidence before the grand jury and presented testimony from a police gang expert who said gang members increasingly are taking their beefs online. Defense lawyers subpoenaed Facebook, Instagram and Twitter for the posts and activity logs of a main witness in the case, Sullivan’s ex-girlfriend. They claimed the posts would show jealousy motivated her to testify against Sullivan.

The defendants argued that quashing the subpoenas would violate their Fifth Amendment right to due process and Sixth Amendment right to effective assistance of counsel. But Bruiniers found the defendants “overstate the extent of constitutional support for their claims.”

Bruiniers also pointed out practical problems that would arise if defendants were granted pretrial access to private information. A government prosecutor seeking private social media records must obtain a search warrant or provide notice to the social media user. A criminal defendant seeking those records wouldn’t be subjected to the same checks.

“A criminal defendant could procure such confidential information simply by serving an ex parte subpoena duces tecum with no required notice to the subscriber or prosecuting authority—and which may, or may not be subject to meaningful judicial review,” Bruiniers wrote.

The opinion does not “preclude defendants from seeking at trial the production of the materials sought here (or petitioners again seeking to quash the subpoenas),” Bruiniers wrote, “where the trial court would be far better equipped to balance the defendants’ need for effective cross-examination and the policies the SCA is intended to serve.”

Caywood, who represents Sullivan, latched on to that passage. She said it’s the first time a state court has left the door open for criminal defendants.

“This is the first chink in the armor that we’ve found,” she said. “Overall we consider it a positive step in the right direction.”

IMAGE: Justice Terence Bruiniers, California Court of Appeal for the First District

Jason Doiy / The Recorder

For more on this story go to: http://www.therecorder.com/id=1202736800358/Defense-Lawyers-Lose-Fight-Over-Facebook-Instagram-Posts#ixzz3lLf4FOZN