The Court of Appeal in Facebook v. Pepe, decided on April 15, 2020, decided whether a criminal defendant may subpoena exculpatory electronic records and under what circumstances.

Defendant Pepe alleging self-defense in an aggravated assault charge sought at trial to seek evidence of communication transmitted by the complainant shortly before the shooting supporting his claim of self-defense.

Specifically, Pepe asked the Superior Court Judge to authorize an ex parte subpoena to Facebook under Rule 17, which permits disclosure of certain personal or confidential information about a victim namely here communications via Facebook around the time of the shooting.

The trial court granted subpoena issued to Facebook and Facebook in turn moved to quash the subpoena contending that the subpoena was unenforceable under the privacy protections of the Stored Communications Act (SCA).

In short, the court ruled that the requested records fell within exceptions to the SCA’s prohibitions and that the SCA did not empower Facebook to defy an otherwise lawfully issued subpoena for the electronic information.

The Court of Appeals also agreed on review.

Generally, unless there are applicable Statutory exceptions the Privacy Act prohibits a service provider from complying with a criminal defendant’s subpoena for covered communications and records in that the SCA renders that subpoena unenforceable against the provider.

However, as the Defendant Pepe successfully argued, SCA was no obstacle to the enforcement of his subpoena, because exceptions in subsections (b) and (c) of the Act (§ 2702) specifically allows a provider like Facebook to divulge the requested information in that exceptions exists with regards to:

  • The contents of a covered communication to, or with the consent of, “an addressee or intended recipient of such communication, and
  • Customer records and information other than a covered communication “to any person other than a governmental entity.”

Thus, the Court held that under the acts sections 2702(b)(1) and (b)(3), Pepe was an “addressee or intended recipient” of any communications sent to his account, and those exceptions therefore permit Facebook to disclose all such communications to Pepe, including any Instagram Stories, that are responsive to his subpoena.

Moreover, over the Facebooks objections and legal arguments, the Court of Appeals also held that the SCA did not authorize Facebook’s refusal to comply with Mr. Pepe’s subpoena for information that SCA allowed Facebook to divulge to him under the exceptions as noted.  That is, the subpoena itself was the proper instrument to obtain such information.

The Court of Appeals and also the trial court were undoubtedly motivated by the defendant’s 6th Amendment rights to confront and also to seek exculpatory evidence in a criminal proceeding which is at the core of our jurisprudence v. Facebook’s flimsy reliance on SCA to shield divulging of the requested electronic information.

Refer to our Washington DC Criminal Lawyer page for more detailed information on this and other criminal law subject matters.

Categories: Criminal Defense.