In Juror Number One v. Superior Court of Sacramento County v. Royster et al., a juror reportedly entered upwards of 30 Facebook posts during trial. Some were reportedly deleted. The issue of juror misconduct was raised. The trial court ordered that the juror execute a consent form “sufficient to satisfy the exception stated in Title 18, USC section 2702(b) allowing Facebook to supply the postings by by Juror Number One during trial.” An appeal, which made its way up to the California Supreme Court but was ultimately decided by the Third Appellate District, resulted.
This opinion may have broad implications since it provides a concise overview of the Stored Communications Act (SCA), as applied to social media sites, and further confronts the defenses which Facebook raises when confronted with subpoenas and orders for user content. In short, this opinion, from a court in Facebook’s home state, sets out winning arguments to avoid the objections which Facebook typically raises to avoid production of user content.
The SCA was drafted in the mid-1980′s prior to the world wide web, much less the modern browser (both early 1990′s), and courts have subsequently struggled trying to shoehorn social media and Web 2.0 concepts into the quaint, antiquated tech-speak in this decades-old legislation. Regardless of whether Facebook is akin to a “bulletin board system” or whether it is an “electronic communication service” or a “remote computing service” makes little difference in these situations. The SCA provides that there is no protection for the user content if there is consent to produce.
Litigants and courts have skirted Facebook’s SCA claims by making the request for content to the Facebook user (typically a plaintiff but here a juror), not directly to Facebook. Armed with an order compelling the user to produce Facebook content, this opinion notes that “because the messages remained in the constructive control of the [user], they were subject to discovery under the federal rules, notwithstanding the SCA.” (citation omitted). In short, if Rule 34 (or some similar state) discovery rule applied, that was sufficient consent. The California court concluded, “in this case, the particular device that the SCA calls for is ‘consent’ and the [user] has not cited any authority for the proposition that a court lacks the power to ensure that this necessary authorization is forthcoming from a party with the means to provide it.”
Counsel seeking to obtain Facebook content, but avoid Facebook’s claim of SCA protection, will want to read this case.