EFF filed an amicus brief (PDF) in support of Facebook in California state appellate court yesterday, urging the court to protect the privacy rights of social media users by requiring that all requests for their account information—including content—be directed to the users, rather than to third parties like Facebook.
The case involved an alleged domestic violence attacker who issued a subpoena to Facebook seeking the content of his alleged victim's Facebook communications. Facebook rightly objected to the attacker's subpoena, noting that the victim had full access to the requested information and that any demand for her information should go to her. The superior court ordered Facebook to comply anyway, so Facebook sought appellate review on a writ of mandamus.
EFF's brief, written by EFF Fellow Jon Eisenberg, notes that the Stored Communications Act plainly prevents a service provider like Facebook from turning over customer content in response to a third-party subpoena. The statute is unequivocal and was confirmed by the California Court of Appeal in O'Grady v. Superior Court, a case EFF handled in 2006. The reasons Congress chose to prevent service providers from turning over customer information to non-governmental actors are also still very strong and important. As the O'Grady court noted:
"it would be far from irrational for Congress to conclude that one seeking disclosure of the contents of e-mail, like one seeking old-fashioned written correspondence, should direct his or her effort to the parties to the communication and not to a third party who served only as a medium and neutral repository for the message."
Quite simply, a third-party provider like Facebook is not in a position to protect you from third-party subpoenas. They don't know whether you have privileges—like the attorney/client or spousal or doctor/patient privileges—that may apply to your information, for instance. They also likely don't know the proper scope of a discovery request given the underlying dispute.
EFF also argues that the Court should use this opportunity to strike a different path than the one taken by another California Court in Juror No. 1 v. Superior Court, where a divided appeals court allowed a judge to force a juror to consent to the release of his information from Facebook. Quite plainly, coerced consent cannot be lawful consent, and a rule that allows judically-coerced consent would effectively nullify the SCA's protections and undermine Congressional intent.
EFF applauds Facebook for standing up for its users in this case. We stand ready to support other service providers who choose to do the same.
