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Facebook Subpoena – Trial Evidence

By Hayes Hunt and Brian Kint

Obtaining information through a subpoena may be easier said than done. Third-party subpoenas to social networking sites are likely to result in an objection on the grounds that the production of private information would violate the Stored Wire and Electronic Communications Privacy Act (SCA). The SCA prohibits Internet companies from disclosing a user’s private information absent the user’s consent. Therefore, courts have generally held that parties cannot obtain opposing parties’ social networking data through a subpoena to the social networking site.

The SCA gives prosecutors a distinct advantage when it comes to obtaining information from social networking sites. For example, 18 U.S.C. § 2703 allows governmental entities to compel social networking sites to provide the content of electronic communications through a warrant (if the content is no more than 180 days old) or through either a warrant or a court order (if the content is more than 180 days old). The law requires that the government notify the social media user if the information is to be obtained through a court order. The law provides an exception to the notification requirement, however, if the government can show that notification could result in a risk to someone’s safety, flight from prosecution, destruction of evidence, intimidation of potential witnesses, or an investigation being jeopardized. As a result, defense counsel may have difficulty obtaining any information from social media sites, while law enforcement officials, under certain circumstances, may be able to obtain the information without the user even knowing.

Facebook’s position regarding nongovernmental access to user content highlights this disparity. Facebook receives so many subpoena requests for user data that it currently dedicates a section of its Help Center to answering questions about civil subpoenas. Nevertheless, Facebook takes the position that it is prohibited by law from disclosing users’ private information and generally moves to quash subpoenas on that basis. Specifically, Facebook argues that the SCA prohibits it from disclosing the contents of a user’s account to any nongovernmental entity through a subpoena. For the most part, this strategy of refusing to disclose user information has been successful.

Originally published in the December 2013 issue of The Champion.

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