Can A Judge Order Individuals to Consent to Facebook Disclosing Their Status Updates?

This issue arose in Juror Number One v. Superior Court, handed down yesterday by the California Court of Appeal, Third District. Because the facts of the case are likely to recur, and they involve a statute I have written a lot about, I thought I would blog my thoughts on the case.

The case involves an investigation into juror misconduct. Exactly what happened is kind of murky, but here’s what I can piece together. During a two-month trial, the jurors were told that they couldn’t discuss the case with anyone. Despite this, one of the jurors — call him “Juror Number One” — posted status updates during the trial that were somewhat related to the case. Juror Number One had “friended” some of the other jurors, and they had access to the status updates, too. The losing party in the trial later found out about the status updates, and somehow obtained copies of what it thought were a complete set of status updates. The trial judge held a hearing and determined that based on the known status updates, there was no prejudice to the trial from the messages. The problem was that no one knew if this was the complete set of status updates. There may have been other status updates that were prejudicial but that weren’t part of the set that the losing party had obtained.

Yesterday’s decision arose in the course of trying to find the complete set of status updates. The losing party at the trial issued two subpoenas to try to get full copies of the postings. The first subpoena was to Facebook, and the second was to Juror Number One. Facebook moved to quash the subpoena on grounds that the subpoena violated the Stored Communications Act, and instead told the judge that the losing party had to subpoena the juror directly. Juror Number One moved to quash the second subpoena on grounds that it was overbroad. The trial judge did not rule on the subpoena to Facebook but quashed the subpoena to the juror on overbreadth grounds. The trial judge then decided that the best way to proceed was to order the juror to sign a consent form that consented to Facebook disclosing the juror’s relevant posting to the judge for in camera review. The idea is that the juror will be forced to consent to Facebook disclosing all the updates, and then the judge can review the full set of updates independently to determine if they were prejudicial. Juror Number One has objected to this procedure and in this appeal is arguing (primarily) that the consent order violated the Stored Communications Act, 18 U.S.C. 2701-11.

In the opinion, the court ruled that the Stored Communications Act did not bar the consent order because the consent order is being served on the juror, not Facebook. Although the Stored Communications Act limits efforts to compel Facebook to disclose evidence, the opinion reasons, that is not what is happening here: The court is effectively compelling the juror to disclose evidence, not compelling Facebook to disclose evidence. Granted, the court is compelling the juror to disclose evidence by forcing the juror to consent to Facebook disclosing evidence, but that’s basically the same thing. In a concurring opinion, Judge Mauro notes that this is tough issue: The SCA bars the court from getting the information directly from Facebook, and here the court is trying to do indirectly what it cannot do directly.

This is a puzzling case, I think. First off, I think it’s probably the case that status updates are covered by the Stored Communications Act. It’s an awkward fit, but on the whole I think the best characterization is that Facebook provides remote computing services with respect to storing status updates for users. As a result, the SCA generally applies to efforts to obtain status updates from Facebook. The next question is whether this particular way to obtain information from Facebook is legal. This is somewhat complicated. On one hand, I suppose it’s true that ordering a person to sign a consent form does not directly violate the Stored Communications Act. The statute limits when the government can compel content from Facebook, and also when Facebook can voluntarily disclose content to either the government or private parties. But it does not directly control whether courts can compel consent forms to be signed.

The problem is that I don’t think the signed consent form has any legal effect under the statute. Without valid consent, Facebook is not permitted to disclose the status updates under 18 U.S.C. 2702. Consent allows Facebook to disclose the status updates if it chooses to, but does not require Facebook to do so. But here the court is compelling the juror to consent. It is a basic principle that compelled consent is not valid consent. You can’t put a gun to someone’s head, make them sign a consent form, and then hold up the consent form as valid. The court’s order strikes me as analogous to putting a gun to the juror’s head: The juror has to sign the consent form or else he will be held in civil or criminal contempt and possibly jailed. That’s not consent; it is compulsion. Because there is no voluntary consent, Facebook should not be allowed to disclose the status updates.

My sense, then, is that the trial court’s order is quite inappropriate. In effect, the court is trying to trick Facebook into inadvertently violating the SCA by making Facebook think that there is consent that allows Facebook to disclose the updates lawfully. If Facebook’s lawyers catch on, they will realize that this consent is invalid and should refuse to disclose the status updates to the court. But depending on how this is presented to Facebook, the folks at Facebook may not realize that the consent is invalid. Under the good-faith exception to civil liability, Facebook would probably escape civil liability in that situation. But the trial court should not be putting Facebook in this position anyway: Assuming that executing a scheme to have a party unknowingly violate the SCA violates the statute, then this would seem to violate the SCA. And even if executing such a scheme does not technically violate the statute directly, surely it is inappropriate for a judge to do such a thing.

What other options does the court have? The most obvious possibility is that the court should allow the losing party to subpoena the juror for all of the status updates during the relevant period that are relevant to the trial. The solution isn’t perfect. The juror might not comply with the subpoena, for example. But the Stored Communications Act limits compelled access to contents of communications directly from providers, and there does not appear to be an exception that applies here.

Thanks to How Appealing and co-blogger Eugene V. for the link.