Defendants can view social media posts for trial, court rules

Criminal defendants and their lawyers may access public social media posts when preparing for a trial, according to a California Supreme Court ruling issued Thursday.

This decision pits social media companies against defense attorneys and raises questions of what is legally considered public or private online.

The case that raised the issue originated in the 2013 broad-daylight murder of 19year-old Jaquan Rice Jr., while he was standing at a Muni stop in Hunters Point with his girlfriend. Defendants Derrick Hunter and Lee Sullivan said Rice publicly threatened them on social media.

The defense asked for videos and other content posted on Facebook, Instagram and Twitter by the victim and a witness. Attorneys for Facebook, which owns Instagram, and Twitter said a decades-old federal privacy law, the Stored Communications Act, protect-

ed them from having to release the user content. The defense argued they should have the same access to social media content as prosecutors, and that not being able to access posts hindered the defendants’ right to a fair trial.

The court ruled Thursday that defenders may access posts that were public at the time of the shooting. But it also upheld a previous Court of Appeal decision that determined a subpoena for posts addressed to specific people was unenforceable.

The court returned the case to appeals court to reassess which posts were public at the time of the shooting.

Janelle Caywood, the defense attorney, considered this a win.

“The decision that came down today was the first time a state supreme court has ruled on this issue and say they care

about the rights of criminal defendants,” she said. But she said she believes the public posts are only the “tip of the iceberg” on the relevant information in her clients’ case.

“Ultimately, at some point, there is going to be a private post that will show someone is innocent,” she said.

Before Thursday’s ruling, Google warned in a brief filed in the case that loosening the rules around releasing information would undermine users’ confidence in the privacy of their communications and “greatly increase” its burden from requests to disclose user information.

Eric Goldman, co-director of the High Tech Law Institute at

Santa Clara University, said a ruling in favor of the defendants could flood companies with subpoenas for information that is already public.

It also remains to be seen what the lower court will deem a “public” post, he said. On Facebook, for example, posts can be made public, limited to friends only, or visible to friends of friends or invitationonly groups. Those friends- or group-limited posts might still be seen by large numbers.

“Social media providers might have to disclose the content if they made it public, but if they are subjected to any form of privacy restrictions then the defendant can’t access it,” he said. “But how (is) something that is shared with thousands of people not public?”

Goldman said the ruling might not change much, as defendants can already find public posts on the Internet. It establishes a “foundation” for how public posts can be used in court, he said. But “the court really created no mechanism for defendants” to gain access to nonpublic posts, he said. The case is Facebook vs. Superior Court, S230051.