The Court of Appeals in Facebook v. Wint, decided on January 3, 2019, determined and analyzed if a criminal defendant is entitled to issue a criminal subpoena on a provider (here Facebook) to obtain certain communications.
Specifically, Mr. Wint charged with multiple murders requested the trial Judge to authorize defense subpoenas duces tecum on Facebook for records, including communications relating to certain accounts.
Facebook objected pursuant to the Stored Communications Act (“SCA”), arguing that Facebook was prohibited from disclosing such information in response to a criminal defendant’s subpoena. The trial court approved the subpoena request and held Facebook in civil contempt and this appeal followed.
The SCA does broadly prohibit disclosure of communications, stating specifically that providers: “shall not knowingly divulge to any person or entity the contents” of covered communications, except as provided:
- To an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;
- As otherwise authorized in section 2517 , 2511(2)(a) , or 2703 of this title;
- with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;
- To a person employed or authorized or whose facilities are used to forward such communication to its destination;
- As may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
- To the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 2258A ;
- To a law enforcement agency if the contents: i) were inadvertently obtained by the service provider; and (ii) appear to pertain to the commission of a crime; or
- To a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.
The Court of Appeals analyzed numerous precedents and caselaw and decisively determined that a private criminal or civil subpoena does not fall under any of the exceptions.
Appellant Wint did however make one rather persuasive constitutional claim and under the doctrine of constitutional avoidance. Wint argued that criminal defendants have a constitutional right to obtain evidence for trial and under the 6th amendment: that is, either “rooted directly in the Due Process Clause, or in the Compulsory Process or Confrontation [C]lauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”
The appellant did not however argue that such communication would have been exculpatory or significant in preparing for his defense. It appears that the Facebook request was more in line with discovery request rather than seeking exculpatory evidence and as such the Court concludes that Mr. Wint has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance.
Moreover Wint had acknowledged that covered communications could have been also sought through subpoenas directed at entities other than Facebook, such as the recipients and senders of the communication sought further diluting his constitutional claim to the information.
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