by

Jill Paperno, 

author of

Representing the Accused: A Practical Guide to Criminal Defense

The subject of subpoenas used to obtain records (duces tecum) is one that you can spend a career trying to master, and never quite get there.  Among the questions you may have to consider when issuing subpoenas are the following:

Can you issue on your own authority or do you have to prepare a judicial subpoena duces tecum?

Do you have to give notice to the other side or third parties?

Do you have to file a motion?

Are there specific laws that govern the type of records you are seeking - medical, mental health, Child Protective, etc.?

Is there specific language that must be used or a specific showing in your application or motion?

Is an order required in addition to the subpoena?

Can you apply ex parte so as not to alert your opponent to the defense theory?

If the material is considered discoverable, can you get it by subpoena?

Does the prosecutor have standing to object?  (Just because they have notice doesn't mean they have standing.)

Where must the materials be sent?

Are they properly certified so the records will be admissible if necessary?

If the prosecutor is trying to subpoena records, in addition to some of the above, there are other issues to consider when trying to prevent issuance of subpoenas:

Do they have the authority to get those records?

Must they be on court order?

Does the defense get notice?

Does the defendant have standing to object?

Does compliance with a prosecutor's subpoena for your client's records violate a privilege?

The answers to these questions will vary from jurisdiction to jurisdiction, but there are some areas that we must all become familiar with no matter where we practice.  One increasingly important area is social media content and metadata.  How many times have we wanted to obtain and introduce the Facebook posts of a complaining witness, or prayed the prosecutor wouldn't see our clients' pages, replete with photos of weed and guns?

If our clients' Facebook entries and Twitter tweets are communications between family and friends, isn't there a Fourth Amendment privacy issue? The following is a (non-exhaustive by any means) discussion of this burgeoning area of law.

There is a federal statute, the Stored Communications Act (SCA), that governs disclosure of social media information.  Based on this law, these companies will not comply with non-judicial subpoenas for certain social media information.  We must become familiar with it, both to obtain records and to oppose the disclosure of our clients' records.  The law distinguishes between newer and older communications, and whether the material sought is content, or the information relating to times, dates, recipients, etc. (metadata).  (Although we easily understand the importance of content, metadata can be very informative too.  For an interesting short lecture on the significance of metadata, see "The Power of Metadata", a Ted talk that can be found on youtube.)

The SCA, 18 U.S. Code Sections  2701 et. seq., governs disclosure by providers of communication services to the public.  For an in-depth discussion of its history and interpretation, see "Discovering Facebook: Social Network Subpoenas and the Stored Communications Act", Harvard Journal of Law & Technology, Volume 24, Number 2 Spring 2011.  http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech563.pdf

Section 2703 addresses disclosure of information through subpoenas and search warrants.  This statute was written years ago, well before social media became commonplace.  So its application has required courts to interpret and reinterpret the law.  The statute distinguishes between information held on an RCS (Remote Computing Service) and ECS (Electronic Communication Services) -  RCS's being entities that store information and ECS's being entities that provide services that enable communication. Some providers may be considered both.

Seeking records

Section 2703(f) requires that an entity that is subject to this law must preserve information upon request of a governmental entity.  The statute (Section 2711) defines governmental entity as "a department or agency of the United States or any State or political subdivision thereof."  Does this mean defense counsel cannot obtain the records?  Maybe we can get a court to order the prosecution to subpoena.  But more often, we will have to go after it.  As defense counsel, we will have to raise the arguments we raise when seeking other records protected by statute, that the constitutional rights trump statutory protections.  (See, e.g., Davis v. Alaska, 415 U.S. 308 and Pennsylvania v. Ritchie 480 U.S 39.)  In the George Zimmermann prosecution, the trial judge granted defense subpoenas for social media records of Trayvon Martin and his girlfriend.  So it can be done.

In U.S. v. Zhuta, 2011 WL 1330855 (W.D.N.Y.), 2 (W.D.N.Y.,2011) Magistrate Judge Hugh Scott denied defendant's numerous subpoenas, including social media subpoenas, without prejudice and without reference to the SCA, instead considering constitutional grounds. But the case did not squarely address a defendant's rights to the material.  We will have an uphill battle as we litigate these cases.  We will have to urge courts to find that our clients' constitutional rights to Due Process, Fair Trial, Confrontation and Compulsory Process under the U.S. Constitution (and your state's parallel state constitutional rights) mandate disclosure.

In "Social Media Evidence in Criminal Proceedings - An Uncertain Frontier", at http://about.bloomberglaw.com/practitioner-contributions/social-media-evidence-in-criminal-proceedings-an-uncertain-frontier-by-justin-p-murphy-and-adrian-fontecilla/, Justin Murphy and Adrian Fontecilla highlight the issues and arguments we will be facing and making.

For some suggestions on how to obtain records by request, (remember metadata?), take a look at "Obtaining Records From Social Networking Websites", http://www.msba.org/sec_comm/sections/solo/docs/ObtainingRecordsFromSocialNetworkingWebsites.pdf.

Opposing subpoenas

In Crispin v. Audigier a California District Court, citing two other federal court decisions, found the party whose records were sought had standing to contest the subpoenas. 

At least two district courts have concluded that individuals have standing to move to quash a subpoena seeking personal information protected by the SCA. In J.T. Shannon Lumber Co., Inc. v. Gilco Limber, Inc., Civil Action No. 2:07–CV–119, 2008 WL 3833216 (N.D.Miss. Aug. 14, 2008), the district court found that “because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider.” Id. at *1. The court finds J.T. Shannon Lumber persuasive. Specifically, it concludes that an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records.

Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 974 (C.D.Cal.,2010)

Other courts have ruled there is no third party standing.  See, e.g. People v. Harris, 36 Misc. 3d 868.

Interestingly, the SCA does provide a basis for opposing subpoenas related to your client.  If you learn of the subpoena and have standing - another question addressed by some courts - you can argue the prosecution has not made the proper application requiring factual assertions and the assertions do not meet the legal standard  for disclosure under the statute:

(d) Requirements for Court Order.— A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

Additionally, the Sixth Circuit in U.S. V. Warshack 631 F.3d 266 held that despite the SCA, defendant Warshack had a reasonable expectation of privacy protected by the Fourth Amendment, and the release of emails pursuant to the SCA without a warrant based on probable cause violated the defendant's Fourth Amendment rights (though the Court found that the police had a good faith basis to believe the search was lawful).

Other challenges may involve arguing a provider is not covered by the definition of the statute, and therefore issuance of subpoenas or search warrants pursuant to the statute was unlawful, and evidence obtained should be suppressed.  For a review of these (unsuccessful) efforts in one case, see U.S. V. Orisakwe, 2013 WL 4836084.