The federal Stored Communications Act (SCA), which generally prohibits a social media provider from divulging communications it maintains, is subject to a “lawful consent” exception. Murder defendants Hunter and Sullivan served subpoenas on Facebook and other social media providers, seeking the public and private content of communications of the murder victim and a prosecution witness. The providers moved to quash the subpoenas under the SCA (18 U.S.C. § 2702(a)). The trial court ordered the data produced. The appellate court ordered the subpoenas quashed. The California Supreme Court granted review. Held: Reversed. The SCA (18 U.S.C. § 2701 et seq.) regulates the conduct of covered service providers and generally prohibits them from disclosing any communication maintained electronically, except where compelled by law enforcement or prosecution subpoena. However, there is an exception where the originator of the communication gives lawful consent (§ 2702, subd. (b)(3)). Communication which is configured to be public (i.e., that in which the media provider placed no restriction on who may access it) fall within this “implied consent” exception and disclosure is permissible. Those communication which are restricted, i.e., accessible only to authorized recipients, may not fall within this exception. Here, the record is unclear as to whether the communications sought are public or restricted. The case was remanded to allow the parties to address the scope of the lawful consent exception and the public/private configuration distinctions regarding the communications at issue.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S230051.PDF