Facebook, Twitter Bring Stored Communications Act Suit to Supreme Court

Facebook, joined by copetitioner Twitter, filed a petition for a writ of certiorari against the Superior Court of San Francisco County last week, alleging that the Supreme Court of the United States should rule to resolve a circuit split regarding the Stored Communications Act.

The question presented was “Whether a criminal defendant has a constitutional right to subpoena service providers and force them to turn over the contents of their account holders’ communications, notwithstanding the SCA’s express prohibition on such disclosures; and whether a service provider can be held in contempt for refusing to violate the SCA in response to such a subpoena.”

The Stored Communications Act governs the circumstances under which service providers (in this case, platforms like Facebook and Twitter) can divulge the contents of electronic communications to third parties. The petitioner focused on the possibility of a criminal defendant using their subpoena power to gain access to electronic communications of their victims in search of exculpatory evidence. They articulated a split between whether the SCA protects platforms from disclosing communications requested by criminal defendants, stating that the Second Circuit, the District of Columbia Court of Appeals (a state-level court), and the Oregon Supreme Court have favored the platform, while the California courts held the petitioners in contempt in the below cases for failing to comply with a subpoena.

The petitioner argued that the decision under review “undermines the SCA by eroding users’ trust that their communications will be disclosed only in prescribed circumstances. It arms criminal defendants with the right to access the private messages of crime victims and witnesses through a subpoena to service providers—behind the backs of the people whose communications are at issue, and often with no opportunity for them to object to the violation of their privacy.”

Facebook and Twitter went on to argue that the lower court’s decision undermined Congressional intent in passing the Stored Communications Act, raised separation of powers issues, and represented an unprecedented expansion of the breadth of a defendant’s right to present a defense.

Attorneys from Perkins Coie and Gibson Dunn authored the petition.