In recent weeks, social media executives have jumped in to pledge their support for the protest movement that emerged in response to the killing of George Floyd by Minneapolis police. In a June 1 Facebook post, Mark Zuckerberg wrote about the need to fight for racial justice and noted, “One of the areas Priscilla and I have personally worked on and where racism and racial disparities are most profound is in the criminal justice system.” On the same day, Twitter’s Jack Dorsey tweeted “Police policy reform now”; he later pledged $3 million to Colin Kaepernick’s Know Your Rights Camp. Instagram CEO Adam Mosseri recently promised to take steps to improve black users’ experience on the platform, and Google’s Sundar Pichai published a blog post this week affirming the company’s support for “organizations working to advance criminal justice reform.”
When it comes to the role these companies actually play in the criminal justice system, however, a different story emerges, according to defense attorneys. As things stand, law enforcement routinely gets access to private social media records, including direct messages, that it can use to investigate and prosecute suspects. But criminal defendants—a group in which poor people of color, particularly black people, are wildly overrepresented—can’t make the companies turn over the same information, even when it could make their case. And at this very moment, Facebook and Twitter are fighting in court to make sure this doesn’t change.
The dispute is about the Stored Communications Act of 1986, a federal law that prohibits an “electronic communications service provider” from sharing users’ communication and account records, subject to a list of exceptions. There’s an exception for law enforcement, but none for defendants. This sets up an imbalance in which privacy law is less restrictive toward the police than it is toward someone trying to prove their innocence. If you’re accused of a crime, police and prosecutors can get a warrant to access your social media accounts, or other users’ accounts that could serve as evidence in the case. But if you go to these companies with a subpoena, they won’t honor it—even if you’ve convinced a judge that the data might prove that someone else committed the crime, that a witness against you is lying, or that you acted in self-defense.
This state of affairs is intensely frustrating to defense attorneys, who in general are already outgunned by vastly better-resourced prosecutors. Jeffrey Stein, a public defender in Washington, DC, said that in serious felony cases, it’s almost automatic for the police to request and receive access to a defendant’s social media accounts. But information that could help his clients’ cases is generally out of reach.
“In a criminal case, where an individual’s life may hinge on whether the jury has a single reason to doubt a witness’s testimony, or whether to believe that your client acted in self-defense, social media often houses the most critical, case-shattering evidence,” he said in an email—hardly a situation Congress could have foreseen when it passed the law in 1986. “That is why law enforcement routinely collects it and uses it against our clients. But, as in so many other ways in our criminal system, the playing field is not level.”
To be clear, social media platforms didn’t create this imbalance. Generally, when they turn down a defendant’s request for user data, the law is firmly on their side. But occasionally, trial court judges have ruled in a defendant’s favor, usually based on the constitutional right to due process. That’s where things get interesting. In these cases, the platforms could simply comply with the order. Instead, they fight tooth and nail to resist it. In one California case, Facebook and Twitter appealed all the way to the US Supreme Court rather than hand over account information to a defendant, even after being placed in contempt for violating the trial court’s order. (The Supreme Court recently declined to take the appeal, possibly because it’s not at the right procedural step.)
The platforms’ aggressive legal briefs suggest that they would prefer not to place defendants on equal footing with law enforcement. In one Washington, DC shooting case, the defendant, James Pepe, argued that he fired in self-defense after the victim sent him a threatening Instagram Story. Pepe’s lawyers requested the message, which like all Instagram Stories had disappeared after 24 hours. This clearly fell under a second exception to the Stored Communications Act: companies can release records to “an addressee or intended recipient of such communication.” But Facebook, Instagram’s parent company, argued that because Instagram Stories automatically delete, Pepe was no longer the “addressee.” The court rejected that argument, ruling that Facebook had to hand the message over. But the case shows how far the company is willing to go to avoid having to give information to criminal defendants.
Why so much resistance? The companies point to user privacy. In an emailed statement, Twitter spokesperson Ian Plunkett said, “At Twitter, protecting and defending the privacy of the people who use our service is built into the core DNA of our company. A key purpose of the Stored Communications Act is to protect individuals’ privacy rights in electronic communications. We will continue to fight to preserve this protection for the people who use Twitter.”
In response to a request for comment, Facebook simply directed me to a help page for law enforcement, but the company’s legal filings strike a tone similar to Twitter’s. “The California court’s decision [against Facebook] undermines the scheme Congress enacted to protect the privacy of communications sent or received on electronic communications platforms—that is, the privacy interests of nearly all Americans,” the company argued in its Supreme Court petition.
The companies clearly have a point. These cases present a tension between protecting user privacy and helping defendants exercise their right to a fair trial. The thing is, that argument applies just as strongly, if not more so, to giving records to law enforcement. Yet the companies don’t seem to have a problem with that. Facebook says it received just over 100 thousand government requests in the US last year and turned over data 88 percent of the time. The majority of those were for search warrants. Facebook even has a dedicated online portal where police and prosecutors can submit requests. That’s a luxury not extended to the defense.
“You know what Facebook tells me I have to do to get even the stuff I’m entitled to?” said Jerome Greco, an attorney at the Legal Aid Society in New York City. “I have to get it personally served on them in California. And the only way to do that under current US law is to have a judge in New York sign the subpoena, then have it brought to a judge in California to also sign the subpoena, and then have it served on Facebook at their headquarters.”
The platforms also argue that defendants can get the information they seek in other ways—like subpoenaing the account holders directly. Defense lawyers say that’s unrealistic.
Sometimes witnesses are hostile, unreachable, or dead. Other times defense counsel just doesn’t have the resources to chase down everyone in someone’s social network.
“Poor people who are being represented by people like me, who get paid a fraction of Facebook’s salaries or what people make in these private law firms—we don’t get unlimited funds to litigate cases and investigate,” said Bicka Barlow, a San Francisco lawyer who worked on the case that got appealed to the US Supreme Court. “And yet we’re supposed to jump through all of these hoops because they don’t want to be inconvenienced by all these defense subpoenas. That’s my cynical view of it, but I think that’s a big part of it.”
Kate Tesch, a public defender in San Diego, has spent years on the case of Lance Touchstone, who was charged with attempted murder after he shot his sister’s ex-boyfriend, and who has maintained that he acted in self defense. After discovering that the ex-boyfriend was posting prolifically to Facebook about the case and his violent thoughts, she said, Tesch—unaware of the Stored Communications Act barrier—subpoenaed Facebook for his account records.
Tesch said that, since the ex-boyfriend deleted his account in 2017, Facebook is literally the only entity that could provide the information, but the company has withheld even public posts from the defense. The only risk it runs is being placed in contempt of court, which would subject it to a fine—of a thousand dollars.
“I was very lucky that I was able to carve out the time and resources as a public defender” to work on Touchstone’s case, Tesch said. “But we’re up against Facebook. What is this to Facebook? They can just do it almost as sport. And at times it almost feels that way. I’m talking about someone’s life, and their freedom, and Facebook is facing a thousand dollar sanction if they just refuse.”
The tide could eventually shift against Facebook and the other social media companies. The Touchstone case is currently pending at the California Supreme Court, which ruled against Facebook in a similar case once before. In a forthcoming paper, Rebecca Wexler, a law professor at Berkeley, argues that the courts have been wrong to interpret the SCA the way they have. In effect, she says, they have created a category of privileged communication—an extremely high level of legal protection that attaches to things like attorney-client communication or national security secrets—without Congress telling them to. A draft of the paper won an award at the Privacy Law Scholars Conference and has attracted interest from government officials.
But it could take years for the law to adapt, if it ever does. In the meantime, the social media giants continue to go to bat to preserve the status quo. It makes for a jarring contrasts with blog posts from CEOs vowing support for Black Lives Matter, especially at a time when, as Instagram’s Mosseri puts it, “people around the world are rightfully demanding actions over words.”
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“Poor people of color don’t just lose their lives to violent police—they lose their lives to unjust prosecutions every day,” said Stein, who added that in eight years representing indigent clients in DC, only two were white. “Companies like Facebook, which fight not just against public defenders, but against judges that order them to produce critical evidence, only add to the problem.”
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