The Stored Communications Act (“SCA”) is a part of the Electronic Communications Privacy Act, which creates a zone of privacy to protect internet subscribers from having their personal information wrongfully used and publicly disclosed by unauthorized private parties. The SCA prohibits the disclosure of private information in response to a third party civil subpoenas. This includes information about Facebook, Twitter, and Instagram accounts.  However, there is an exception to the prohibition on disclosure if the person who posted the information has given “lawful consent” to its disclosure.  18 U.S.C. 2702(b)(3).  This decision interprets that provision to require internet service providers to produce, in response to a subpoena, any material that has been configured by the social media user to be public. The exception does not apply, however, to materials not so configured but opened by the poster for view by specific individuals, even though those persons might further disclose the materials.  Since the trial court did not determine how much of the materials the criminal defendants sought to subpoena in this case had been publicly posted and thus must be produced, it was too early to decide whether the SCA’s prohibition of disclosure of other materials infringed their constitutional rights to defend themselves in the criminal action brought against them.

California Supreme Court (Cantil-Sakauye, C.J.); May 24, 2018; 2018 Cal. LEXIS 3635