1

Filed 7/23/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SNAP, INC., 

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

DIEGO COUNTY,

Respondent;

 D083446

 (San Diego County

 Super. Ct. No. SCN429787)

ADRIAN PINA et al.,

Real Parties in Interest.

META PLATFORMS INC.,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

DIEGO COUNTY,

Respondent;

 D083475

 (San Diego County

 Super. Ct. No. SCN429787)

ADRIAN PINA et al.,

Real Parties in Interest.
2

ORIGINAL PROCEEDINGS on petitions for writs of mandate.

Daniel F. Link, Judge. Relief denied in part and granted in part, peremptory 

writ issued modifying order. 

Fenwick & West, Tyler G. Newby, Janie Yoo Miller, Esther D. Galan, 

and David W. Feder for Petitioner Snap, Inc.

Perkins Coie, Julie E. Schwartz, Natasha Amlani, Michel C. Bleicher, 

and Ryan Mrazik for Petitioner Meta Platforms, Inc.

Paul Rodriguez, Public Defender, Troy A. Britt, Deputy Public 

Defender, for Real Party in Interest Adrian Pina.

Summer Stephen, District Attorney, Linh Lam and Karl Husoe, Deputy 

District Attorneys for Real Party in Interest The People. 

This writ proceeding presents a question of first impression that was 

raised but not decided by the California Supreme Court in Facebook, Inc. v. 

Superior Court (2020) 10 Cal.5th 329 (Touchstone): Whether the business 

models of social media companies like Meta, Inc. (Meta) and Snap, Inc.

(Snap), under which they access their customer’s data for their own business 

purposes, excludes them from the limitations imposed on the disclosure of 

information by the Stored Communications Act (18 U.S.C. § 2701 et seq., 

SCA or the Act1). As we shall explain, we conclude that the companies’ 

ability to access and use their customers’ information takes them outside the 

strictures of the Act. 

Adrian Pina, real party in interest, was charged with the murder of his 

brother, Samuel, and the attempted murder of another man, and currently 

awaits trial on the charges. Last September, Pina’s defense counsel issued 

1 All further section citations are to title 18 of the United States Code 

unless otherwise indicated.
3

criminal defense subpoenas to Snap, the corporation which operates 

Snapchat, and Meta, the corporation that operates Facebook and Instagram, 

seeking social media posts and other communications made by Samuel on 

those platforms in the two years prior to his death. Pina seeks this material 

because he believes it may contain information relevant to his defense, 

specifically showing Samuel’s violent character. 

After Snap sent a letter to Pina’s counsel indicating it would not 

provide the requested information and Meta ignored the initial subpoena, the 

trial court issued an order directing compliance by a hearing set for January 

8, 2024. This prompted Snap to file a motion to quash the subpoena, 

asserting its compliance with it was precluded by the SCA. Meta filed a 

motion to quash during the January 8, 2024 hearing. At the conclusion of 

that hearing, the court denied both motions. 

Snap and Meta promptly petitioned this court for writs of mandate

staying the trial and vacating the trial court’s order. In response, we issued 

an order to show cause, stayed the trial court proceedings, and consolidated 

the two petitions. Among other arguments, Snap and Meta assert the trial 

court’s order requiring them to disclose the requested communications and 

data to Pina is precluded by the SCA and that the trial court failed to make 

the good cause findings required for this pretrial discovery under Touchstone.

We agree with Pina that the trial court conducted a sufficient analysis 

of good cause, that the facts presented by Pina supported the court’s 

determination that good cause existed, and that because the business models 

of Snap and Meta provide them with the ability to access and use the 

information sought by Pina, the SCA does not foreclose production of that 

information. However, we agree with Pina that the material should not be 

disclosed directly to him. Rather, under Penal Code section 1326, 
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subdivision (d), the material should first be produced to the trial court in 

camera for the court to determine whether the material is relevant to Pina’s 

defense and if it should be produced to him. 

FACTUAL AND PROCEDURAL BACKGROUND

Pina is charged with murder (Pen. Code, § 187), attempted murder (id., 

§§ 664, 187), and possession of a firearm by a felon (id., § 29800). The 

murder and firearm charges relate to the shooting death of Samuel that took 

place on December 26, 2021. The attempted murder charge relates to a

shooting incident involving another victim that is alleged to have occurred 

earlier the same day. During the preliminary hearing on December 7, 2022, 

Samuel’s girlfriend testified that Samuel and Pina shared the gun used in his 

murder. She also stated she had posted a picture of Samuel with another 

gun on her Snapchat account, and that the photo might be saved in her 

“Snapchat memories.” 

During pretrial discovery, the prosecution provided Pina’s defense 

counsel with an extraction of data from Samuel’s cell phone. According to 

Pina’s counsel, the extraction contained over 100,000 PDF pages and was not 

in a format that allowed for viewing of the raw data or navigation through 

the phone’s contents. On October 20, 2023, defense counsel brought a 

partially successful motion to compel, and was permitted to view the phone at 

the Oceanside Police Department. The phone contained videos of fights and 

suggested gang affiliation, and showed there was data on the phone that was 

not previously provided to Pina’s defense counsel. This resulted in an 

additional court order to “re-extract” Samuel’s cell phone data and provide 

the full contents, including its raw data, to Pina’s counsel. The defense 

received the data on November 16, 2023. 
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The information defense counsel viewed on the cell phone also

prompted Pina’s counsel to believe that Samuel’s social media accounts might 

contain relevant evidence to support Pina’s defense. On September 26 and 

28, 2023, respectively, Pina issued subpoenas duces tecum to Snap and Meta 

to compel the corporations to bring to court or produce to the defense the 

contents of Samuel’s social media accounts on or by October 20, 2023. The 

subpoena to Snap called for the production of “any and all account 

information, including posts, photos, and messages ....” The subpoena to

Meta called for the production of “[a]ll records associated with Samuel’s 

account including basic subscriber records as well as stored contents of the 

account, including timeline posts, messages, phone calls, videos, location 

information, and information from 1/1/2020 to December 31, 2021.” 

In response to the subpoena, on October 16, 2023, Snap sent a letter to 

defense counsel objecting and stating it would not produce any records. Meta 

did not respond to the subpoena. On December 8, 2023, the trial court signed 

an order directing both corporations to produce the records, which, on 

December 12, 2023, defense counsel served on Snap and Meta with new 

versions of the subpoenas.2 The production was ordered by January 8, 2024, 

and a hearing was set for the same date.

On December 29, 2023, Snap filed a motion to modify in part, and

quash in part the subpoena. Snap agreed to produce basic subscriber 

information, but asserted it could not provide any additional information 

because doing so was prohibited by the SCA. Meta did not file any response 

2 The subpoena to Snap was updated to request: “(1) All records 

associated with Samuel Pina’s account, including basic subscriber records as 

well as stored (2) contents of the account including posts, photos, messages, 

phone calls, videos, location information, and (3) information from 1/1/2020 to 

December 31, 2021.” The subpoena to Meta was unchanged.
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to the subpoena before the January 8, 2024 hearing date, but did submit a 

motion to vacate, modify, or quash Pina’s subpoena during the hearing. Like 

Snap, Meta asserted the communications and data sought by Pina were 

protected by the SCA, as well as the Revised Uniform Fiduciary Access to 

Digital Assets Act (Prob. Code, § 870 et seq.). Meta also argued that Pina 

had not shown good cause for the requested information. Specifically, it 

argued Pina had not shown any relationship between the requested 

information and his defense, or that he could not obtain the information from 

other sources. Finally, Meta argued it was deprived of due process because it 

had no record of receiving Pina’s first subpoena and thus had no opportunity 

to object. 

Also on the date of the hearing, Pina filed an opposition to Snap’s 

motion to quash. Pina, citing Touchstone, supra, 10 Cal.5th 329, asserted

Snap did not fall within the purview of the SCA because its terms of service 

require users to agree to allow Snap to retain and use the information they 

put on Snapchat for its own business purposes. Pina also asserted his right 

to prepare his defense, specifically to show Samuel’s violent nature,

outweighed any privacy concern of Samuel. 

At the hearing, the trial court indicated it was inclined to deny both 

Snap’s and Meta’s motions. The court noted Snap’s and Meta’s arguments, 

and Pina’s assertion that the communications at issue were not protected by 

the SCA because the corporations “mine data” and use it for profit. The court 

was also concerned with the lopsided nature of Snap and Meta’s position,

noting “the problem I’m having ... let’s say that this subpoena came from the 

prosecution or ... from a law enforcement agency, hypothetically [the] San 

Diego Police Department, or just this court ... would you have filed a motion 

to quash?” Snap’s and Meta’s counsel both responded they would have 
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complied with a valid search warrant for the same information. The 

prosecutor stated she did not oppose Pina’s request for this information. She 

also stated, however, that she was not willing to seek the information herself

because the “Oceanside Police Department ha[d] conducted [its] 

investigation,” the prosecution had the evidence it needed and was ready to 

proceed to trial, and Pina was conducting a “fishing expedition” to try to paint 

Samuel “in a negative light, as a violent person.” 

The court then stated it had already determined by its prior order 

compelling the production that the information sought was relevant and that

there was probable cause for the information. Snap’s counsel responded that 

probable cause was not the proper standard for the court to consider, and 

instead the court was required to assess good cause under the factors set 

forth in Touchstone. The court agreed and then specifically discussed those 

factors, finding the material sought was not publicly available, there was no 

other way for Pina to obtain the material, and that Pina had shown a 

plausible justification for the material based on the information he submitted

from Samuel’s cell phone, which had been provided to the defense by the 

Oceanside police. Pina’s counsel noted that Snap had not argued that good 

cause for the subpoena was lacking in its motion to quash, instead relying 

entirely on the SCA, and that the information submitted by Pina in support 

of his opposition to the motion showed good cause. 

Meta’s counsel then requested a continuance of the hearing to allow it 

to receive opposition to its motion filed that day, which Pina’s counsel had yet 

to receive. Like Snap, Meta also argued the SCA precluded it from providing 

the communications and data sought by Pina. The trial court stated it 

understood counsel’s arguments, but was finding sufficient probable cause 

existed and denied both motions to quash. The court ordered the production
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of the information by January 18, 2024. On January 12, 2024, Snap filed a 

motion to stay the production pending the resolution of its forthcoming 

petition for a writ of mandate. The court granted the motion extending the 

deadline to produce the information to February 2, 2024.

Snap filed its petition for writ of mandate in this court on January 17, 

2024, and Meta filed its petition on January 19, 2024. We then issued an 

order staying the proceedings in the trial court and requesting informal 

responses from real parties in interest Pina and the District Attorney. After 

receiving the informal responses, we consolidated the two cases, issued an 

order to show cause, and set deadlines for the filing of the real parties’ return 

and the petitioners’ reply briefs. 

DISCUSSION

In their petitions, both Snap and Meta argue that the trial court’s order 

denying their motions to quash was flawed because Pina did not establish 

good cause for the subpoenaed material. The District Attorney sides with the 

corporate third parties, asserting the court failed to conduct an adequate 

analysis under Touchstone. Pina argues that the court’s analysis was 

sufficient, and the court did not err in finding he established good cause for 

the material, which he argues may contain information helpful to his defense. 

Snap and Meta also assert that the production of the requested 

material is precluded by the SCA. The District Attorney responds that these 

entities are not covered by the SCA in this case, and they have presented 

insufficient evidence to establish they constitute electronic communication

service (ECS), or remote computing service (RCS) providers as defined by 

that law. Pina also asserts that Snap and Meta do not qualify as ECS or RCS 

providers and, therefore, the SCA does not prevent production of the 

requested material. He also contends that the SCA would be
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unconstitutional if it were applied in this case because it would violate his 

equal protection, due process, and fair trial rights. 

I

Law Governing a Motion to Quash a Subpoena Duces Tecum

Touchstone, supra, 10 Cal.5th 329, provides a helpful starting point. 

There, the Supreme Court set forth the relevant statutes and case law that 

relate to the issuance of criminal subpoenas.3 “Under Penal Code section 

1326, subdivision (a), various officials or persons—including defense counsel, 

and any judge of the superior court—may issue a criminal subpoena duces 

tecum, and, unlike civil subpoenas, there is no statutory requirement of a 

“ ‘good cause’ ” affidavit before such a subpoena may be issued. [Citations.] 

It is important to note, however, that such a criminal subpoena does not 

command, or even allow, the recipient to provide materials directly to the 

requesting party. Instead, under subdivision [(d)] of section 1326, the sought 

materials must be given to the superior court for its in camera review so that 

it may ‘determine whether or not the [requesting party] is entitled to receive 

the documents.’ (Pen. Code, § 1326, subd. [(d)]; see also People v. Blair (1979) 

25 Cal.3d 640, 651 [such materials cannot legally be given directly to the 

requesting party].)” (Touchstone, at pp. 343–344.)

“Although no substantial showing is required to issue a criminal 

subpoena duces tecum, as explained below, in order to defend such a 

3 Meta argues that because the California Electronic Communication

Privacy Act (Pen. Code, § 1546 et seq., CalECPA) requires the government to 

obtain a search warrant in order to compel it to turn over content, that 

statute entirely forbids a defendant in a criminal trial from obtaining such 

information. This is not an accurate assertion of the law. Rather, as we shall 

discuss, criminal defendants have the opportunity to obtain discovery of 

relevant information to their defense through the procedure set forth in Penal 

Code section 1326. 
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subpoena against a motion to quash, the subpoenaing party must at that 

point establish good cause to acquire the subpoenaed records. In other words, 

as we have observed, at the motion to quash stage the defendant must show 

‘some cause for discovery other than “a mere desire for the benefit of all 

information.” ’ ” (Touchstone, supra, 10 Cal.5th at p. 344; see also People v. 

Madrigal (2023) 93 Cal.App.5th 219, 256 (Madrigal) [“To acquire the 

materials, the defendant must make a showing of good cause—that is, 

specific facts justifying discovery.”].) “ ‘ “[T]he good cause requirement 

embodies a ‘relatively low threshold’ for discovery.” ’ ... An accused is entitled 

to any ‘ “pretrial knowledge of any unprivileged evidence, or information that 

might lead to the discovery of evidence, if it appears reasonable that such 

knowledge will assist him in preparing his defense....’ ” ’ ” (Id., at pp. 256–

257, italics added.)

To determine whether good cause has been established, the Touchstone

court looked to the seven factors set forth in City of Alhambra v. Superior 

Court (1988) 205 Cal.App.3d 1118 (Alhambra). “ ‘[T]he trial court ... must 

consider and balance’ [these seven factors] when ‘deciding whether the 

defendant shall be permitted to obtain discovery of the requested material.’ ”4 

(Touchstone, supra, 10 Cal.5th at p. 344.) First, the defendant must show a 

“ ‘ “plausible justification” ’ for acquiring documents from a third party 

[citations] by presenting specific facts demonstrating that the subpoenaed 

documents are admissible or might lead to admissible evidence that will 

reasonably ‘ “assist [the defendant] in preparing his defense.” ’ ” (Touchstone, 

at p. 345.) The defendant is not permitted to go on “an impermissible 

4 “For convenience,” the Touchstone court referred “to these seven 

considerations as the ‘Alhambra factors.’ ” (Touchstone, supra, 10 Cal.5th at 

p. 347.) We do the same.
11

‘ “fishing expedition.” ’ ” (Ibid.) This factor is the “most significant” of the 

seven. (Id. at p. 345, fn. 6.) 

Second, the material sought must be “adequately described and not 

overly broad.” (Touchstone, supra, 10 Cal.5th at p. 346.) Third, the court 

must consider if “the material [is] ‘reasonably available to the ... entity from 

which it is sought (and not readily available to the defendant from other 

sources).” (Ibid.) Fourth, the court must consider whether “production of the 

requested materials violate a third party’s ‘confidentiality or privacy rights’

or intrude upon ‘any protected governmental interest.’ ” (Ibid.) Fifth, the 

request must be timely, and not premature. (Id. at p. 347.) Sixth, the court 

must consider whether “the ‘time required to produce the requested 

information ... [would] necessitate an unreasonable delay of defendant’s 

trial.’ ” (Ibid.) And finally, the court must assess whether “ ‘production of the 

records containing the requested information ... place[s] an unreasonable 

burden on the [third party].’ ” (Ibid.) 

We review the trial court’s decision denying a motion to quash a 

criminal subpoena for abuse of discretion. (Pitchess v. Superior Court (1974) 

11 Cal.3d 531, 534.) 

II

The Trial Court Did Not Abuse Its Discretion by Finding Good Cause 

A

Snap’s and Meta’s Due Process Rights Were Not Violated

As an initial matter, we reject Snap’s and Meta’s assertions that their 

due process rights were violated by the trial court’s denial order. In its 

petition, Snap takes issue with the trial court’s December 8, 2023 order 

requiring it to comply with Pina’s subpoena and argues the court erred by 

proceeding ex parte. After receiving the initial subpoena, dated September 
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26, 2023, calling for a response or production of the requested information by 

October 20, 2023, Snap sent a letter to Pina’s counsel indicating it would not 

comply. Snap, however, did not file a motion to quash the subpoena, the only 

available method to avoid compliance, prior to the December 8, 2023 hearing. 

(See Code Civ. Proc., § 1987.1 [setting forth procedure to quash subpoena 

duces tecum]; City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 

883, 888 [“In general, the procedural remedy against a defective subpoena 

duces tecum ... is a motion to quash, vacate, recall, or modify the 

subpoena.”].) Thereafter, Snap filed its motion to quash and was provided 

with opportunity to argue its position at the January 8, 2024 hearing. 

Meta also contends that the trial court impinged on its due process 

rights by not affording it the opportunity to provide further briefing on a 

shortened briefing schedule as it requested. Unlike Snap, Meta did not 

respond at all to the initial subpoena served by Pina.5 In addition, after 

receiving the second subpoena accompanied by the court’s December 8, 2023 

order, Meta failed to act promptly. Meta retained counsel, who contacted 

Pina’s defense counsel just five days before the January 8, 2024 hearing. It 

asserts that during that conversation, Pina’s counsel agreed Meta could file 

its motion to quash on January 8, 2024. 

At the hearing, Meta’s attorney, Micheal C. Bleicher, stated that he 

requested a continuance from Pina’s counsel to see if they could work out an 

informal resolution. Bleicher stated that Pina’s counsel responded she could 

not agree to a continuance but they “agreed that Meta could file a response to 

the subpoena and order by January 8, today.” Bleicher stated his 

5 Meta’s counsel asserted in her declaration in support of Meta’s motion 

to quash that “Meta does not have any record of receiving” the initial 

subpoena issued by Pina. 
13

“understanding was that today’s hearing, as far as Meta [was] concerned, 

would be an opportunity to explain to the court that Meta was appearing in 

response to the subpoena and order, to state these objections, and to work out 

an abbreviated briefing schedule so that Meta could receive the defendant’s 

opposition to its motion before” its substance was addressed. The court 

denied this request, repeating its finding that good cause for the subpoena 

had been shown and denied both motions to quash. 

We reject Snap’s assertion that the court’s December 8, 2023 relevance 

finding was improper because Snap did not appear at the hearing on that 

date. Rather, we agree with Pina that Snap’s decision to rest on its letter, 

rather than bring a motion to quash after receiving the initial subpoena, bars 

this argument. Likewise, Meta’s failure to act in a timely manner bars its 

argument that it was deprived of due process. Further, Snap filed its motion 

and received opposition, and, as Pina points out, Snap and Meta were both

provided the opportunity to make a record at the hearing without constraint. 

B

Good Cause Supports the Trial Court’s Denial of the Motions to Quash

Meta, Snap, and the District Attorney contend the trial court made an 

inadequate record concerning its good cause finding. We disagree. As Snap 

asserts, when a defendant seeks information via a subpoena duces tecum 

from a third party that is challenged by a motion to quash he “must make a 

showing of good cause—that is, specific facts justifying discovery.” 

(Madrigal, supra, 93 Cal.App.5th at p. 256.) Further, the trial court must 

“create a record that facilitates meaningful appellate review. ... [A] trial 

court should, at a minimum, articulate orally, and have memorialized in the 

reporter’s transcript, its consideration of the relevant factors.” (Touchstone, 
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supra, 10 Cal.5th at p. 358.) Contrary to Meta’s and Snap’s assertions, this 

relatively low bar was satisfied by the trial court here. 

We do agree with the petitioners that the probable cause standard cited 

at points by the trial court during the January 8, 2024 hearing was not the 

correct one. The court, struck by the petitioners’ concession that they would 

not object to providing the material to law enforcement in response to a valid 

search warrant, referred several times to the probable cause standard 

applied in that context.6 This was not the correct standard for the defense 

subpoenas at issue. However, the court itself noted at the outset of the 

hearing the correct standard and that it was required to assess the Alhambra

factors. And, once Meta’s counsel pointed out that standard, the court 

articulated its determination under the Alhambra factors, stating explicitly it 

had considered the factors and found good cause existed for the subpoenaed 

material. Its explanation satisfied Touchstone’s requirement that the court 

“articulate orally, and have memorialized in the reporter’s transcript, its 

consideration of the relevant factors.” (Touchstone, 10 Cal.5th at p. 358; see 

also In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040 [“Code of Civil 

Procedure section 632 requires the trial court to issue a statement of decision 

‘upon the trial of a question of fact’ when it receives a request therefor by a 

party appearing at trial. In general, however, section 632 applies when there 

has been a trial followed by a judgment. [Citation.] It does not apply to an 

6 Under this test, “[t]he task of the issuing magistrate is simply to make 

a practical, common-sense decision whether, given all the circumstances set 

forth in the affidavit before him ... there is a fair probability that contraband 

or evidence of a crime will be found in a particular place. And the duty of a 

reviewing court is simply to ensure that the magistrate had a ‘substantial 

basis for ... [concluding]’ that probable cause existed.” (Illinois v. Gates 

(1983) 462 U.S. 213, 238–239.)
15

order on a motion. ... This is true even if the motion involves an evidentiary 

hearing and the order is appealable.”].)

Turning to the Alhambra factors, we also agree with Pina that the 

court did not abuse its discretion and reasonably concluded good cause exists 

for the subpoenaed materials. “We first consider whether defense counsel 

demonstrated a ‘plausible justification’ for acquiring the documents. This is 

the ‘most significant’ consideration, and ‘should be given prominence.’ ” 

(Madrigal, supra, 93 Cal.App.5th at p. 258.) The trial court concluded that a 

plausible justification existed based on the information obtained from 

Samuel’s phone and his girlfriend’s testimony at the preliminary hearing.

The court stated the information obtained from Samuel’s phone showed “the 

victim could potentially have some violent tendencies, which may or may not 

be relevant at trial which ... does satisfy that plausible justification.” 

The evidence submitted by Pina in support of his opposition to the 

motion to quash showed a photograph of Samuel with the gun used in the 

shooting, suggesting that Samuel’s social media accounts might contain 

similar material that could support Pina’s defense, either if he acted in selfdefense during an altercation with his brother or to show that Samuel had a 

violent character. Samuel’s girlfriend, in fact, stated that she took a picture 

of Samuel holding a gun that was posted on Snapchat. These facts supported 

the court’s finding that the requested material could be relevant to Pina’s 

defense and could contain admissible evidence about Samuel’s character. 

(Touchstone, supra, 10 Cal.5th at p. 348 [“ ‘ “A showing ... that the defendant 

cannot readily obtain the information through his own efforts will ordinarily 

entitle him to pretrial knowledge of any unprivileged evidence, or information 

that might lead to the discovery of evidence, if it appears reasonable that 

such knowledge will assist him in preparing his defense....” ’ ”], italics 
16

omitted.) This conclusion was reasonable, and not an abuse of the court’s 

discretion. 

Indeed, as Meta points out in its petition, the prosecutor “conceded at 

the hearing that this material could be relevant, exculpatory evidence that 

the prosecution has an obligation to obtain via search warrant” and that “if 

the prosecution did so, the material could be discoverable.” Further, all 

parties agreed at the hearing that had the prosecution obtained a search 

warrant for the same material, there would be probable cause to support the 

warrant. While the two standards are arguably not identical, they bear 

strong similarities, and certainly a finding of probable cause (which was 

conceded by the petitioners) suggests the existence of good cause in the 

context of a defense subpoena. 

Snap argues that plausible justification for material from its platform 

does not exist, and the defense is on an impermissible “fishing expedition,”

because the exhibits submitted by the defense in opposition to its motion to 

quash contained only photographs from Meta’s platforms. However, as 

stated, the preliminary hearing transcript shows that Samuel’s girlfriend 

indicated there were photographs on Snapchat that showed him with a gun. 

This evidence was sufficient to show a plausible justification to obtain the 

requested material from Snap. 

The next Alhambra factor requires the court to assess whether the 

request is “adequately described and not overly broad.” (Touchstone, supra, 

10 Cal.5th at p. 346.) Snap and Meta contend the material sought by the 

subpoenas is not sufficiently narrow because it seeks all content from 

Samuel’s accounts over a two-year period. Pina responds that without access 

to Samuel’s accounts it is not possible to draft a more narrow or specific 

request. Further, Pina points to the trial court’s statement that defense 
17

“focused in on specific data, which very well could exist, since we’ve already 

been through the phone and realized there’s some matter there that could be 

relevant.” 

The requested material is somewhat broad. However, as Pina notes, 

there is no way to narrow the request because the contents of the accounts 

are not known.7 As Pina concedes, the proper procedure is for the material to 

be produced to the court for an in camera inspection so that its relevance can 

be further considered by the trial court before the material is produced to 

Pina. We agree with Pina that the trial court’s decision that this factor does 

not prevent disclosure was appropriate in these circumstances.8 

We also reject Snap’s assertion that the sixth, fourth, and seventh 

Alhambra factors favored granting its motion to quash. Snap argues the 

request is untimely because Samuel’s girlfriend’s testimony at the 

preliminary hearing that she posted a photo of Samuel on her Snapchat 

account took place on December 7, 2022, more than ten months before the 

7 At oral argument, Snap and Meta took issue with the two-year period 

set forth in the subpoenas. We cannot say, however, as a matter of law that 

this timeframe is overbroad. 

8 The two cases cited by Snap, which involve far broader requests than 

the ones at issue here, do not persuade us otherwise. (See People v. Serrata

(1976) 62 Cal.App.3d 9, 15 [holding trial court did not abuse its discretion by 

quashing a subpoena calling “for the production of ‘literally millions of pieces 

of paper’ which were located at IBM plants throughout the world and which 

constituted the work product of numerous teams of experts and scientists 

who had devoted as much as four or five years to the development of the 

sixteen complex computer devices which were the subject of the subpoenas”]; 

and Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 166–167 [order 

granting motion to quash subpoena seeking 10 years of all crime and arrest 

reports made by two police officers was overly broad and burdensome, 

especially in light of order granting other similar discovery to defendant].)
18

subpoenas were issued. However, the record shows that Pina’s public 

defender was pursuing discovery in this case over the course of 2023, 

including working to obtain the contents of Samuel’s cell phone from the 

Oceanside Police Department. It wasn’t until the fall of 2023 that Pina’s 

counsel received additional evidence from that phone suggesting Samuel’s 

social media content might contain additional relevant information. This 

record does not show the court’s finding that the request was timely is an 

abuse of discretion. 

The fourth Alhambra factor, whether the requested material violates 

individual privacy rights or intrudes on a protected government interest, also 

does not support reversal of the court’s order denying the petitioners’ motions 

to quash. With respect to privacy, Snap points to the SCA. As we shall 

explain, however, we conclude the SCA does not apply to this case because 

the information sought is not the type of private information to which that 

law applies. Given this conclusion, we are left only with the privacy concerns 

of Samuel and the third parties that he interacted with. Samuel is deceased 

and we agree with Pina that any privacy interest that remains with respect 

to Samuel’s interest is outweighed by Pina’s interest to discover information 

that is potentially relevant to his defense. Further, as stated, because the 

statutes governing the production of this information allow for the material 

to be produced only to the trial court for a determination of its relevance, any 

privacy concern is significantly mitigated. Accordingly, we agree with Pina 

that this factor does not show the court’s order was an abuse of discretion.

Finally, with respect to the final Alhambra factor (whether the request 

is unreasonably burdensome to the nonparty), the only burden Snap cites in 

its petition is its potential civil liability under the SCA. The SCA does 

impose civil liability for violations of the Act. (§ 2707.) However, as Snap 
19

recognizes, the law contains a safe harbor for good faith reliance on a court 

order requiring disclosure. (§ 2707(e)(1).) There is no question that the safe 

harbor applies in this case. 

Only Meta’s petition specifically addresses the third Alhambra factor, 

whether “the material [is] ‘reasonably available to the ... entity from which it 

is sought (and not readily available to the defendant from other sources).’ ” 

(Touchstone, supra, 10 Cal.5th at p. 346.) Meta argues the court failed to 

adequately assess this factor or consider whether Pina could obtain Samuel’s 

Instagram or Facebook content from another user Samuel interacted with, a 

“legacy contact” for Facebook,9 or another person with access to Samuel’s 

account. At the January 8, 2024 hearing, however, the court explicitly found 

that there was no other source for Pina to obtain this information, and no 

“legacy contact” for Samuel. In response, Meta made no argument to counter 

this finding and in its petition, despite being the repository for the material 

at issue, does not indicate whether a legacy contact exists. 

Particularly in light of the length of time since Samuel’s death, we 

agree with Pina that the trial court’s determination that the material at issue 

is not available from other sources was a reasonable finding, and not an 

abuse of the court’s discretion. As with the other Alhambra factors, this

factor also supports the court’s conclusion that Pina provided good cause for 

the information sought in his subpoenas to Snap and Meta that may contain 

information relevant to Pina’s defense to the murder of his brother. 

9 Meta explains that “ ‘[a] legacy contact is someone you choose to look 

after your main profile if it’s memorialized after you’ve passed away. If you 

add a legacy contact, that person will be able to make decisions about your 

main profile once it is memorialized.’ ” 
20

C

Procedure for Disclosure

As discussed, the procedure for Pina to obtain this information does not 

require Snap and Meta to produce the material directly to Pina. Rather, 

under “subdivision [(d)] of section 1326, the sought materials must be given 

to the superior court for its in camera review so that it may ‘determine 

whether or not the [requesting party] is entitled to receive the documents.’ 

(Pen. Code, § 1326, subd. [(d)]; see also People v. Blair (1979) 25 Cal.3d 640, 

651 [such materials cannot legally be given directly to the requesting 

party].)” (Touchstone, supra, 10 Cal.5th at p. 344.) Accordingly, we direct the 

trial court to issue a modified order requiring the petitioners to provide the 

requested material to the trial court for its consideration of whether or not 

the material should be provided to Pina as relevant to his defense. 

III

The SCA Does Not Apply to the Subpoenaed Material

A

Touchstone, supra, 10 Cal.5th 329, identified another critical issue now 

placed squarely before this court: Whether these social media companies’ 

“business model[s] place[ them] outside key provisions of the SCA and 

render[ them] subject to an enforceable state subpoena.” (Id. at p. 360.) In 

Touchstone, a defendant charged with attempted murder issued a subpoena

to Facebook seeking all of the victim’s “Facebook communications (including 

restricted posts and private messages), and a related request that Facebook 

preserve all such communications.” (Id. at p. 342.) The defendant, Lance 

Touchstone, supported the subpoena “by offering a sealed declaration 

describing and quoting certain public Facebook posts made by [the victim] 

after the shooting that, defendant asserted, revealed [the victim’s] violent 
21

general musings.” (Id. at p. 342.) “The trial judge ordered Facebook to 

comply with the subpoena or appear in court to address any objection to it 

and to preserve the account and related stored communications.” (Ibid.)

Facebook then moved to quash the subpoena. The trial court denied 

the motion, “finding good cause for the subpoena” based on Touchstone’s 

sealed declaration and a subsequent, second sealed declaration containing 

additional public Facebook posts. (Touchstone, supra, 10 Cal.5th at p. 355.) 

However, “[n]either the reporter’s transcript of the hearing, nor the resulting 

minute order, reflect[ed] that the court expressly considered and balanced the 

most relevant Alhambra factors.” (Id. at pp. 355‒356.) 

Like Meta and Snap in this case, Facebook filed a petition for writ of 

mandate seeking to overturn the trial court’s order. The Court of Appeal 

reversed the trial court’s decision, rejecting the defendant’s claims that to 

“the extent the SCA allows Facebook to block his subpoena, the Act must be 

found to violate his federal Fifth Amendment due process rights, along with 

his Sixth Amendment rights of confrontation, cross-examination, and 

counsel—and hence [that] the SCA is unconstitutional as applied to him.” 

(Touchstone, supra, 10 Cal.5th at p. 338.) In the Supreme Court, the 

defendant advanced the same constitutional arguments. (Ibid.) 

The Supreme Court, however, identified significant problems with the 

underlying record. In particular, the documents that had been filed under 

seal in the trial court presented an incomplete picture of the factual basis for 

the material sought by the defendant from Facebook. (Touchstone, supra, 10 

Cal.5th at pp. 339‒341.) Further, because it sealed the subpoena, the trial 

court had proceeded on an ex parte basis, without the full participation of the 

prosecution or the subpoenaed third party. (Ibid.) The Supreme Court 

concluded this procedure called into question the veracity of the assertions 
22

that had been made by the defendant in the underlying proceedings. (Id. at 

p. 341.) In addition, and critically, the Supreme Court held that the trial 

court had failed to conduct the proper analysis to determine good cause. It 

held “the trial court below abused its discretion when ruling on the motion to

quash by failing to apply the seven-factor Alhambra test,” and remanded the 

matter “to afford the trial court an opportunity to consider the good cause 

issue anew, this time with full participation by all three parties.” (Id. at 

p. 359.)

The Touchstone court, thus, did not reach the constitutional issues 

asserted by the defendant concerning the SCA. (Touchstone, supra, 10 

Cal.5th at p. 359.) The Supreme Court, however, did address, but not decide, 

the issue of “whether [Facebook] is covered and bound by the SCA.” (Id. at 

p. 360.) The defendant and prosecutor there, as here, jointly argued “that 

Facebook’s business model places it outside key provisions of the SCA and 

renders it subject to an enforceable state subpoena.” (Ibid.) They asserted 

that Facebook’s Terms of Service and Data Policy constitute a “business 

model of mining its users’ communications content, analyzing that content, 

and sharing the resulting information with third parties to facilitate targeted 

advertising,” which “precludes it from qualifying as an entity subject to the 

SCA.” (Ibid.)

Facebook responded by suggesting the court’s opinion in Facebook, Inc. 

v. Superior Court (2018) 4 Cal.5th 1245 (Hunter), and decisions in other prior 

litigation, had resolved the question and determined that Facebook operates 

as a provider of either ECS or RCS under the SCA. (Touchstone, supra, 10 

Cal.5th at p. 360.) The Supreme Court, however, rejected this assertion, 

stating that in Hunter, it “undertook no substantive analysis concerning 

whether the entities in that case (including Facebook) provide ECS or RCS 
23

with regard to the communications there at issue. Because (1) prior decisions 

had found or assumed that Facebook and analogous social media entities 

provide either ECS or RCS with regard to the type of sought posts and/or 

messages at issue in those prior cases and in Facebook (Hunter), and 

(2) neither party in Facebook (Hunter) contested the issue, [the court] stated 

that [it] saw ‘no reason to question [that] threshold determination.’ ([Hunter, 

supra,] 4 Cal.5th at p. 1268.) Accordingly, [the court] assumed, but did not 

decide, that Facebook provided either ECS or RCS with regard to the 

communications sought—and hence was covered by the Act’s general ban on 

disclosure of content by any entity providing those services.” (Touchstone, at 

pp. 360–361.) The Supreme Court stated explicitly, it “did not consider 

whether, under the business model theory..., Facebook provides either ECS or 

RCS, or neither, under the Act” and that “potentially dispositive issue 

remain[ed] unresolved.” (Id. at p. 361.) 

Of great importance here, in a concurring opinion, then Chief Justice 

Cantil-Sakauye wrote separately to specifically “explore [the business model]

theory in greater depth because, in [her] view, it deserve[d] additional and 

focused attention, perhaps on remand in [the present] case or at least in other 

similar future litigation.” (Touchstone, supra, 10 Cal.5th at p. 361 (conc. opn. 

of Cantil-Sakauye, C. J.).) The concurrence outlines the contours of the 

business model argument advanced by the defense and district attorney,

Facebook’s response, and the applicable statutory language of the SCA. (Id. 

at pp. 363‒366.)

Meta’s Terms of Service for Facebook, of which we take judicial notice

in this case, provide: “Instead of paying to use Facebook and the other 

products and services we offer, by using the Meta Products covered by these 

Terms, you agree that we can show you personalized ads and other 
24

commercial and sponsored content that businesses and organizations pay us 

to promote on and off Meta Company Products. We use your personal data, 

such as information about your activity and interests, to show you 

personalized ads and sponsored content that may be more relevant to you.” 

(Facebook, Terms of Service <www.facebook.com/legal/terms> (revised July 

26, 2022) [as of July 23, 2024], archived at <https://perma.cc/5A49-85MR>, 

pt. 2, How our services are funded.) Moreover, the terms provide: “We need 

certain permissions from you to provide our services: [¶] .... [¶] [T]o provide 

our services we need you to give us some legal permissions (known as a 

‘license’) to use this content. ... [¶] Specifically, when you share, post, or 

upload content that is covered by intellectual property rights on or in 

connection with our Products, you grant us a non-exclusive, transferable, sublicensable, royalty-free, and worldwide license to host, use, distribute, modify, 

run, copy, publicly perform or display, translate, and create derivative works 

of your content (consistent with your privacy and application settings). This 

means, for example, that if you share a photo on Facebook, you give us 

permission to store, copy, and share it with others (again, consistent with 

your settings) such as Meta Products or service providers that support those 

products and services.” (Id., at pt. 3, Your commitments to Facebook and our 

community, pt. 3.3, The permissions you give us, pt. 3.3.1, Permission to use 

content you create and share.)

Meta’s Data Policy for Facebook, which we also take judicial notice of, 

states: “ ‘We collect the content, communications and other information you 

provide when you use our Products, including when you ... message or 

communicate with others. This can include information in or about the 

content you provide ... Our systems automatically process content and 

communications you and others provide to analyze context ... . [¶] ... [¶] We 
25

also receive and analyze content, communications and information that other 

people provide when they use our Products.’ ([Facebook, Data Policy 

<www.facebook.com/full_data _use_policy> (revised Apr. 19, 2018) (as of 

Aug. 10, 2020)], at pt. I, What kinds of information do we collect?/ Things you 

and others do and provide/ Information and content you provide/ Things 

others do and information they provide about you.)” (Touchstone, supra, 10 

Cal.5th at pp. 362–363, fn. 3. (conc. opn. of Cantil-Sakauye, C. J.).)

“Facebook’s Data Policy further explains it employs users’ mined and 

analyzed content to facilitate various services, including to ‘[p]rovide, 

personalize, and improve our Products. [¶] ... and make suggestions for you’

by showing users ‘personalize[d] ads, offers, and other sponsored content.’

([Facebook, Data Policy <www.facebook.com/full_data _use_policy> (revised 

Apr. 19, 2018) (as of Aug. 10, 2020)], at pt. II, How do we use this 

information?/ Provide, personalize and improve our Products/ Ads and other 

sponsored content.) In that regard, Facebook relates, it shares information 

about its users’ content with ‘third-party partners ... which [in turn] makes it 

possible to operate our companies and provide free services to people around 

the world.’ (Id., at pt. III, How is this information shared?/ Sharing with 

Third-Party Partners.) Facebook states that it ‘do[es]n’t sell any of your 

information to anyone,’ but instead ‘[s]har[es] with,’ ‘work[s] with,’ and 

‘provide[s]’ that information to ‘third-party partners.’ (Ibid., italics added.) 

Specifically, for some partners, it supplies ‘aggregated statistics and insights 

that help people and businesses understand how people are engaging with 

their posts ... and other content.’ (Id., at pt. III, Partners who use our 

analytics services.) And for advertisers, Facebook explains: ‘We provide ... 

reports about the kinds of people seeing their ads and how their ads are 

performing ... .’ (Id., at pt. III, Sharing with Third-Party 
26

Partners/Advertisers.) At the same time, Facebook stresse[d]: ‘[W]e don’t 

share information that personally identifies you (information such as your 

name or email address that by itself can be used to contact you or identifies 

who you are) unless you give us permission. For example, we provide general 

demographic and interest information to advertisers (for example, that an ad 

was seen by a woman between the ages of 25 and 34 who lives in Madrid and 

likes software engineering) to help them better understand their audience. 

We also confirm which Facebook ads led you to make a purchase or take an 

action with an advertiser.’ ” (Touchstone, supra, 10 Cal.5th at p. 363, fn. 3. 

(conc. opn. of Cantil-Sakauye, C. J.).) The concurrence also noted that 

“Facebook does not contest that it mines, analyzes, and shares with third 

party advertisers information about content found in, among other things, its 

users’ communications—including restricted posts and private messages.”10 

(Id. at pp. 362–363.) 

The concurrence then provides an explanation of the relevant 

provisions of the SCA, explaining that under the Act, “ECS is defined as ‘any 

service which provides to users thereof the ability to send or receive wire or 

electronic communications.’ (§ 2510(15) [incorporated into the SCA by 

§ 2711(1)].) Section 2702(a)(1), directs that an ‘entity providing an electronic 

communication service to the public shall not knowingly divulge to any person 

or entity the contents of a communication while [the communication is] in 

electronic storage by that service.’ (Italics added.) ‘Electronic storage’ is 

defined in section 2510(17), as ‘(A) any temporary, intermediate storage of a 

wire or electronic communication incidental to the electronic transmission 

thereof; and [¶] (B) any storage of such communication by an electronic 

communication service for purposes of backup protection of such 

10 Likewise, Meta does not contest this fact in the present case.
27

communication.’ (Italics added.)” (Touchstone, supra, 10 Cal.5th at p. 364 

(conc. opn. of Cantil-Sakauye, C. J.).) 

“RCS, by contrast, is defined as ‘the provision to the public of computer 

storage or processing services by means of an electronic communications 

system.’ (§ 2711(2).) Section 2702(a)(2)’s introductory language directs that 

an ‘entity providing remote computing service to the public shall not 

knowingly divulge to any person or entity the contents of any communication 

which is carried or maintained on that service’ when certain conditions are 

met. (Italics added.)” (Touchstone, supra, 10 Cal.5th at p. 364 (conc. opn. of 

Cantil-Sakauye, C. J.).) “The next parts of section 2702(a)(2) describe the 

conditions that will trigger the duty of an entity providing RCS to ‘not 

knowingly divulge’ the contents of any communication carried or maintained 

by that entity. ... [T]he first condition set out in subsection (a)(2)(A) [states]: 

the ‘carried or maintained’ communication must be ‘on behalf of, and received 

by means of electronic transmission from ... a subscriber or customer of such 

service.’ ” (Ibid.)

The opinion then explains, “[i]t is the second condition set out in section 

2702(a)(2)(B) that lies at the center of the business model argument advanced 

by defendant and the district attorney. Under section 2702(a)(2)(B), the 

prohibition on disclosure by an entity that provides RCS applies only if the 

communication is carried or maintained on the service “solely for the purpose 

of providing storage or computer processing services to such subscriber or 

customer, if the provider is not authorized to access the contents of any such 

communications for purposes of providing any services other than storage or 

computer processing.’ (Italics added.)” (Touchstone, supra, 10 Cal.5th at 

p. 365 (conc. opn. of Cantil-Sakauye, C. J.).)
28

The concurring opinion notes, “[t]his crucial passage is hardly a model 

of clarity. It appears to express two related conditions in order to qualify as a 

communication held by an entity that provides RCS: (1) the user’s data must 

be transmitted to the provider ‘solely for the purpose of providing storage or 

computer processing services’; and (2) the entity must ‘not [be] authorized to 

access the contents of any such communications for purposes of providing any 

services other than storage or computer processing.’ (§ 2702(a)(2)(B); see, e.g., 

Robison, Note, Free at What Cost?: Cloud Computing Privacy Under the 

Stored Communications Act (2010) 98 Geo. L.J. 1195, 1213–1214 ... [so 

construing the statute].) Based on this language, the author of the cited law 

journal and other commentators have argued that if the entity is ‘authorized 

to access the contents of any such communication for purposes of providing 

any services other than storage or computer processing’ (§ 2702(a)(2)(B), 

italics added)—that is, for the purposes of providing any services in addition

to storage or computer processing—the Act’s bar on disclosure is inapplicable.

In other words, these commentators reason, such an entity would not be 

acting as an RCS that is, in turn, generally barred from disclosing 

communications content—and hence the entity would be subject to a viable 

subpoena duces tecum.” (Touchstone, supra, 10 Cal.5th at pp. 365–366 (conc. 

opn. of Cantil-Sakauye, C. J.), fn. omitted.)

The concurring opinion then implores the United States Congress to 

update the then 34-year old, outdated law, which was adopted prior to the 

advent of the internet and long before the social media platforms at issue 

here came into existence. (Touchstone, supra, 10 Cal.5th at p. 366 (conc. opn. 

of Cantil-Sakauye, C. J.).) The opinion quotes from cases and scholarly 

literature over the past two decades expressing frustration with the SCA’s 

failure to account for changes in technology and opines that “[b]ecause 
29

Congress has not acted to alter the relevant provisions of the SCA despite the 

pleas of courts and commentators that it do so, litigants and judges have no 

option but to apply the Act’s outdated definitions to the evolved and still 

developing technology and entities of today.” (Id. at p. 368.) 

After outlining the arguments of the parties, which are similar to those 

made here, and repeating the majority opinion’s conclusion that whether 

Facebook falls within the ambit of the SCA’s protections remains an open 

question, Chief Justice Cantil-Sakauye provided her tentative assessment of 

policy arguments made by Facebook in support of its position that the SCA 

barred it from producing any information in response to a criminal defense 

subpoena. (Touchstone, supra, 10 Cal.5th at p. 371.) In particular, Facebook 

asserted it should be afforded status as an ECS or RCS because “concluding 

otherwise would (1) unduly disrupt and impair technological innovation, (2) 

disappoint users’ settled privacy expectations, and (3) frustrate its ability to 

protect against malware.” (Id., at p. 371 (conc. opn. of Cantil-Sakauye, C. 

J.).)

While noting “[t]he first two contentions certainly should give a court 

pause before holding that Facebook and similar entities fall outside section 

2702(a),” the concurrence predicts “for practical marketplace reasons, it may 

be doubted that such a holding would likely lead to such disruptions or 

voluntary disclosures by most Internet entities, absent legal compulsion.” 

(Touchstone, supra, 10 Cal.5th at pp. 371–372 (conc. opn. of Cantil-Sakauye, 

C. J.).) Additionally, the concurrence noted it was not “likely that law 

enforcement actors would attempt to compel entities to disclose users’ 

communications with, as Facebook asserts in its briefing, ‘a mere subpoena’ ” 

since “other laws and authority already protect against that.” (Ibid.) 

“Finally,” she stated, “as a matter of policy, a holding finding Facebook to lie 
30

outside the SCA might have the beneficial effect of spurring long-needed 

congressional adjustment of the outdated Act, as repeatedly advocated by 

courts and commentators.”11 (Ibid.)

B

Because we agree with Pina that the trial court conducted a sufficient 

good cause analysis, and that good cause supports the subpoenaed material, 

we are faced with the question Touchstone’s concurring opinions asked our 

state’s lower courts to address. We must decide whether the SCA applies in 

this circumstance to preclude discovery of the social media material

subpoenaed by Pina. In their petitions, Snap and Meta maintain that the 

SCA allows production of material in a criminal case only when it is 

requested by a government entity as defined by the Act and that the public 

defender does not meet this definition. 

In response, Pina and the District Attorney both contend that neither 

Snap nor Meta qualify under the SCA’s definition of ECS or RCS, and thus 

they cannot prevent disclosure of the subpoenaed material on that basis. In 

its reply brief, Snap argues that under the statute’s plain language, the SCA 

is applicable here and also that the real parties’ interpretation of the statute 

11 Writing in a separate concurrence, former Justice Cuéllar noted the 

importance of the issue now before us, i.e. “the crucial matter of how broadly 

to read the SCA—and, in particular, whether it protects Facebook and 

similar entities from the duty to honor valid subpoenas issued by our state 

courts,” and implored lower courts “to take up [this] very question.” 

(Touchstone, supra, 10 Cal.5th at p. 373 (conc. opn. of Cuéllar, J.).) In his 

concurrence, Justice Cuéllar noted that courts “should endeavor to discern 

whether Congress’s purpose in enacting the SCA encompassed protecting 

communications held by social media companies such as Facebook” and that 

“[t]he companies storing ever-expanding troves of data about our lives,” as 

well as the people of California, “would surely benefit from greater clarity 

about the full extent of [those companies’] responsibility to honor a valid 

subpoena.” (Id. at p. 374.)
31

would lead to absurd results by stripping the users of its platform of the 

privacy protections the SCA was designed to create. Further, it asserts that 

the real parties’ interpretation would “negatively impact [the] providers[’]

ability to protect their users and platforms by identifying wrongdoing,

removing illicit content, and when appropriate, reporting responsible 

individuals to law enforcement....” In its reply, Meta argues the issue was 

not sufficiently raised in the trial court and thus should not be considered in 

its writ petition and, alternatively, the SCA applies to preclude disclosure of 

the material subpoenaed by Pina. 

1. The SCA

“Congress enacted the Electronic Communications Privacy Act in 1986. 

(ECPA; Pub.L. No. 99-508 (Oct. 21, 1986), 100 Stat. 1848, 1860.) Title I of 

that law, amending the prior ‘Wiretap Act,’ addresses the interception of 

wire, oral, and electronic communications. (§§ 2510–2521.) Title II of the 

law, set out in chapter 121, is often referred to as the [SCA]. It addresses 

unauthorized access to, and voluntary and compelled disclosure of, such 

communications and related information. (§§ 2701–2712.)” (Hunter, supra, 4 

Cal.5th at p. 1262.)

“Prior to the ECPA’s enactment, the respective judiciary committees of 

the House of Representatives and the Senate prepared detailed reports 

concerning the legislation. Each explained that the main goal of the ECPA in 

general, and of the SCA in particular, was to update then existing law in 

light of dramatic technological changes so as to create a ‘fair balance between 

the privacy expectations of citizens and the legitimate needs of law 

enforcement.’ (H.R.Rep. No. 99-647, 2d Sess., p. 19 (1986) (hereafter House 

Report); see also Sen. Rep. No. 99-541, 2d Sess., p. 3 (hereafter Senate 

Report) [speaking of protecting both ‘privacy interests in personal proprietary 
32

information’ and ‘the Government’s legitimate law enforcement needs’].) 

Each report also highlighted a related objective: to avoid discouraging the use 

and development of new technologies. These three themes—(1) protecting 

the privacy expectations of citizens, (2) recognizing the legitimate needs of 

law enforcement, and (3) encouraging the use and development of new 

technologies (with privacy protection being the primary focus)—were also 

repeatedly emphasized by the bill authors in their debate remarks. As this 

history reveals, and as a leading commentator on the SCA has explained, 

Congress was concerned that ‘the significant privacy protections that apply to 

homes in the physical world may not apply to “virtual homes” in cyberspace,’

and hence ‘tried to fill this possible gap with the SCA.’ ” (Hunter, supra, 4 

Cal.5th at pp. 1262–1263, fns. omitted.)

“ ‘The [SCA] reflects Congress’s judgment that users have a legitimate 

interest in the confidentiality of communications in electronic storage at a 

communications facility. Just as trespass protects those who rent space from 

a commercial storage facility to hold sensitive documents, [citation], the 

[SCA] protects users whose electronic communications are in electronic 

storage with an ISP or other electronic communications facility.’ ” (Juror 

Number One v. Superior Court (2012) 206 Cal.App.4th 854, 860 (Juror 

Number One.)

“The SCA addresses two classes of service providers, those providing 

electronic communication service (ECS) and those providing remote 

computing service (RCS).” (Juror Number One, supra, 206 Cal.App.4th at 

p. 860.) “An ECS is ‘any service which provides to users thereof the ability to 

send or receive wire or electronic communications.’ (18 U.S.C. § 2510(15); see 

18 U.S.C. § 2711(1).) An RCS provides ‘computer storage or processing 
33

services by means of an electronic communications system.’ (18 U.S.C. 

§ 2711(2).)” (Id. at pp. 860‒861.)

Subject to certain conditions and exceptions, the SCA prohibits “ECS’s 

from knowingly divulging to any person or entity the contents of a 

communication while in ‘electronic storage’ (§ 2702(a)(1)) and prohibits RCS’s 

from knowingly divulging the contents of any communication ‘which is 

carried or maintained on that service’ (id., § 2702(a)(2)).” (Juror Number 

One, supra, 206 Cal.App.4th at p. 861.) In addition, “[i]f an entity does not 

act as a provider of ECS or RCS with regard to a given communication, the 

entity is not bound by any limitation that the SCA places on the disclosure of 

that communication—and hence the entity cannot rely upon the SCA as a 

shield against enforcement of a viable subpoena seeking that 

communication.” (Touchstone, supra, 10 Cal.5th at p. 363 (conc. opn. of 

Cantil-Sakauye, C. J.).) 

As stated, the SCA prohibits an ECS “from divulging ‘the contents of a 

communication while in electronic storage by that service.’[12] (18 U.S.C. 

§ 2702(a)(1).) However[, as discussed in the Touchstone concurrence,] the 

term ‘electronic storage’ has a limited definition under the SCA. It covers ‘(A) 

any temporary, intermediate storage of a wire or electronic communication 

incidental to the electronic transmission thereof; and (B) any storage of such 

communication by an electronic communication service for purposes of 

backup protection of such communication.’ (18 U.S.C. § 2510(17), [italics 

12 Section 2702(a)(1) states that, subject to specified exceptions set forth 

in subdivisions (b) and (c), “a person or entity providing an electronic 

communication service to the public shall not knowingly divulge to any 

person or entity the contents of a communication while in electronic storage 

by that service.” (§ 2702(a)(1).) 
34

added].)[13] Thus, only copies of electronic communications held by the ECS 

pending initial delivery to the addressee or held thereafter for backup 

purposes are protected.” (Juror Number One, supra, 206 Cal.App.4th at 

p. 861.)

Similarly, “[a]n RCS is prohibited from divulging the content of any 

electronic transmission that is carried or maintained on its service ‘solely for 

the purpose of providing storage or computer processing services to [the] 

subscriber or customer, if the provider is not authorized to access the 

contents of any such communications for purposes of providing any services 

other than storage or computer processing.’ (18 U.S.C. § 2702(a)(2)(B).)”14 

(Juror Number One, supra, 206 Cal.App.4th at pp. 861–862.) “Thus, if the 

service is authorized to access the customer’s information for other purposes, 

such as to provide targeted advertising, [as Chief Justice Cantil-Sakauye 

13 Under section 2711(1), the terms defined in the Wiretap Act (§§ 2510–

2521) of the ECPA at section 2510 are given the same definitions for purposes 

of the SCA.

14 Section 2702(a)(2) states, subject to specified exceptions set forth in 

subdivisions (b) and (c), that “a person or entity providing remote computing 

service to the public shall not knowingly divulge to any person or entity the 

contents of any communication which is carried or maintained on that 

service– [¶] (A) on behalf of, and received by means of electronic transmission 

from (or created by means of computer processing of communications received 

by means of electronic transmission from), a subscriber or customer of such 

service; [¶] (B) solely for the purpose of providing storage or computer 

processing services to such subscriber or customer, if the provider is not 

authorized to access the contents of any such communications for purposes of 

providing any services other than storage or computer processing ....”
35

suggests in Touchstone,] SCA protection may be lost.”15 (Juror Number One, 

supra, 206 Cal.App.4th at p. 862.)

The next two subsections of section 2702—(b) and (c)—list the 

exceptions to the general prohibitions on disclosure by ECS and RCS 

providers that are contained in subsection (a). “Subsection (b) describes eight 

circumstances under which a provider ‘may divulge the contents of a 

communication.’ (§ 2702(b).) As relevant here, subparts (1) through (3) of 

subsection (b) permit disclosure: (1) ‘to an addressee or intended recipient of 

such communication or an agent of such addressee or intended recipient’

(§ 2702(b)(1)); (2) pursuant to section 2703, which, as described below, 

permits a ‘governmental entity’ to compel a covered provider to disclose 

stored communications by search warrant, subpoena or court order; [or] 

(3) ‘with the lawful consent of the originator or an addressee or intended 

recipient of such communication, or the subscriber in the case of [a] remote 

computing service.’ ” (Hunter, supra, 4 Cal.5th at p. 1265.) Subsection (c) of 

section 2702 “describes [seven] circumstances under which a covered provider 

may divulge non-content information—that is, any ‘record or other 

information pertaining to a subscriber to or customer of such service (not 

including the contents of communications ...).’ ” (Ibid.)

In Hunter, supra, 4 Cal.5th 1245, the Supreme Court examined the 

legislative history of the disclosure exceptions in section 2702. The court 

found that the 1986 house report on the legislation “indicated its 

understanding that with regard to electronic communications configured by 

the user to be accessible to the public, a covered service provider would be 

15 Section 2702(a)(3), again subject to the same exceptions of subdivisions 

(b) and (c), “bars any service provider from knowingly divulging any noncontent ‘record or other information pertaining to a subscriber to or customer’ 

to any governmental entity.” (Hunter, supra, 4 Cal.5th at p. 1265.) 
36

free to divulge those communications under section 2702(b)(3)’s lawful 

consent exception.” (Id. at p. 1268.) In reaching this conclusion, the court 

looked to the house report’s analysis indicating that consent could be implied 

both by a “user’s act of posting publicly, and/or by a user’s acceptance of a 

provider’s terms of service: ‘Consent may ... flow from a user having had a 

reasonable basis for knowing that disclosure or use may be made with respect 

to a communication, and having taken action that evidences acquiescence to 

such disclosure or use—e.g., continued use of such an electronic 

communication system.’ ([H.R.Rep. No. 99-647, 2d Sess., p. 19 (1986) 

(hereafter House Rep.)], italics added.)” (Hunter, supra, 4 Cal.5th at 

pp. 1267‒1268.) 

“The report explained that ‘[a]nother type of implied consent might be 

inferred from the very nature of the electronic transaction. For example, a 

subscriber who places a communication on a computer “electronic bulletin 

board,” with a reasonable basis for knowing that such communications are 

freely made available to the public, should be considered to have given 

consent to the disclosure or use of the communication.’ (..., italics [omitted].)

Moreover, the report continued, ‘If conditions governing disclosure or use are 

spelled out in the rules of an electronic communication service, and those 

rules are available to users or in contracts for the provision of such services, 

it would be appropriate to imply consent on the part of a user to disclosures 

or uses consistent with those rules.’ ” (Hunter, supra, 4 Cal.5th at p. 1268.)

2. Application of the SCA to the Material Subpoenaed by Pina

As an initial matter, it is not clear from the record developed on the 

writ petitions whether Samuel’s Facebook, Instagram, and Snapchat

accounts were configured as public or private. To the extent they were 

configured by him as public, that information is unquestionably subject to the
37

user consent exception under section 2702(b)(3) of the SCA, as set forth in 

Hunter, supra, 4 Cal.5th at p. 1274, and should be produced to the trial court

and identified by Meta and Snap as public. (Ibid. [“communications 

configured by a social media user to be public fall withing section 2702(b)(3)’s 

lawful consent exception, presumptively permitting disclosure by a 

provider”].)

Separate from the settled issue of public verses private 

communications, Pina argues that Snap and Meta do not qualify as ECS or 

RCS providers because they “do not provide temporary or intermediate 

storage of communications incidental to its transmission, nor do[ they] store 

that communication merely for backup purposes.” Pina asserts that, “as 

evidenced by their own terms of service and privacy policy, Snap Inc. and 

Meta Platforms Inc. retain and utilize user communication content for their 

own business purposes and to enhance services offered on the platforms.” 

Therefore, Pina contends, the SCA does not apply to the material sought by 

his subpoenas. The District Attorney also argues that the SCA does not 

apply, asserting that Snap and Meta failed to present any evidence to support 

their assertion that the law precludes them from producing the subpoenaed 

material. 

Pina accepts the invitation of the Touchstone concurring opinions to 

argue that the business model of these companies brings them outside the 

limitations of disclosure created by the SCA. We are persuaded by this 

argument. The statutes at issue, which notably were “ ‘enacted before the 

advent of the World Wide Web in 1990 and before the introduction of the web 

browser in 1994,’ ” by their terms do not apply when the provider of ECS or 

RCS is accessing the user’s content for purposes other than facilitating 
38

communications or storing the content as backup for the user. (Juror 

Number One, supra, 206 Cal.App.4th at p. 861.)

First, with respect to ECS, as Juror Number One explained, “only 

copies of electronic communications held by the ECS [provider] pending 

initial delivery to the addressee or held thereafter for backup purposes are 

protected.” (Juror Number One, supra, 206 Cal.App.4th at p. 861.) 

Specifically, section 2702(a)(1) of the SCA prohibits a provider of ECS from 

divulging the contents of an electronic communication while the provider

holds that content in “electronic storage” for its users. (§ 2702(a)(1).) 

However, as discussed, the SCA explicitly limits the definition of “electronic 

storage” for purposes of the protection afforded by section 2702(a)(1) to 

“temporary, intermediate storage of a wire or electronic communication 

incidental to the electronic transmission thereof” or “any storage of such 

communication by an electronic communication service for purposes of 

backup protection of such communication.” (§ 2510(17), italics added.) 

Here, neither Snap nor Meta refute Pina’s assertion that—while their 

platforms do store the content of their user’s communications incidentally to 

transmission and for purposes of backup for its users—they also maintain 

that content for their own business purposes.16 Snap and Meta contend that 

because the content is stored for both reasons, the SCA precludes disclosure 

16 Facebook’s terms of service and privacy policy set forth in the

concurring opinion in Touchstone are the same ones at issue in this case. As 

Snapchat explains in its reply brief in this court, citing to its terms of service 

and privacy policy, “Snapchat users grant Snap permission to access their 

communications” for reasons in addition to providing storage and computer 

processing services, including agreeing that “Snap may access and review 

their content ‘at any time and for any reason,’ ” and to “permit Snap to store, 

use, and analyze content to improve the services provided and to research 

and develop new ones.” 
39

in this circumstance. However, the underlying policy purpose of the SCA, to 

give privacy protections to the users of ECS providers who intend for their 

communication to be private, is belied where, as here, the users have given 

the providers authorization to access and use their content for their own 

business purposes. (See Konop v. Hawaiian Airlines, Inc. (9th Cir. 2002) 302 

F.3d 868, 875 [concluding, based on the SCA’s legislative history, that 

“Congress wanted to protect electronic communications that are configured to 

be private, such as email and private electronic bulletin boards”].) This dual 

purpose brings the content outside the SCA’s plain definition of ECS provider 

because the content is held and used by Snap and Meta for their own profitdriven purposes.17

17 Meta cites to a series of cases it contends have “held or assumed” that 

“the SCA covers Facebook or similar services.” As explained in the 

concurrence in Touchstone, however, none of these cases addressed the 

specific argument advanced here, that the social media companies’ business 

models—which require their users to authorize the companies to access their 

communications—bring the services outside the definitions of ECS and RCS 

providers set forth in the SCA. (See Hunter, supra, 4 Cal.5th at p. 1268 

[seeing “no reason to question” that the SCA covers Facebook content]; Negro 

v. Superior Court (2014) 230 Cal.App.4th 879, 889, 901–904 [applying the 

SCA to private email (Gmail account administered by Google, Inc.) and 

rejecting Google’s contention that the SCA barred civil discovery from an ECS 

provider where consent was provided by users]; Crispin v. Christian Audigier, 

Inc. (C.D. Cal. 2010) 717 F.Supp.2d 965, 989–991 [finding social media 

services like Facebook and MySpace are covered by the SCA, but not 

considering the argument that access by the providers could eliminate that 

status]; Ehling v. Monmouth-Ocean Hosp. Serv. Corp. (D.N.J. 2013) 961 

F.Supp.2d 659, 667 [finding the SCA applies to Facebook posts in context of 

civil lawsuit asserting violation of the SCA by the plaintiff’s employer; not 

considering Facebook’s access to users content]; Viacom Int’l Inc. v. YouTube

Inc. (S.D.N.Y. 2008) 253 F.R.D. 256, 264 [finding the SCA applies to videos on 

YouTube that are configured to be private]; State v. Johnson (Tenn. Crim. 

App. 2017) 538 S.W.3d 32, 69 [stating in dicta, after finding it lacked 
40

Similarly, and slightly more clearly, section 2702(a)(2) precludes “a 

person or entity” that provides RCS from disclosing the content of its users’ 

communications in situations where the content is maintained by the 

provider on behalf of its users “solely for the purpose of providing storage or 

computer processing services” to the user and “if the provider is not 

authorized to access the contents ... for purposes of providing any services 

other than storage or computer processing ....” (§ 2702(a)(2)(A)–(B).) Here, 

Snap and Meta concede that they do not provide RCS solely for purposes of 

providing storage or processing services, and they concede that their terms of 

service authorize them to access the contents for their own business 

purposes. Thus, under the plain language of section 2702(a)(2), because Snap 

and Meta are not maintaining communications “solely for the purpose of 

providing storage or computer processing services” to their users, the SCA

does not preclude them from disclosing the material sought by Pina’s 

subpoenas. (§ 2702(a)(2)(B).)

In its reply brief, Snap presents a different interpretation of this 

statutory language. Snap argues that under section 2702(a)(2)(B) “the only 

time that SCA protection for a communication depends on whether it is held 

‘solely for the purpose of providing storage or computer processing services,’ 

is if the user has not given the provider authorization to access those 

communications for any other reason.” Thus, it asserts, if the communication 

is held solely for the purpose of providing storage or processing, it is protected 

only if the user has given the provider authorization to access it for another 

reason—here, Snap’s users have agreed to allow Snap to access their 

communications “ ‘at any time for any reason’ ” , including “to identify 

jurisdiction in the case before it, that the SCA is applicable to 

communications shared on social media websites].)
41

content [that] violates [its] terms or any applicable law’ ” and “to store, use, 

and analyze content to improve the services provided and to research and 

develop new ones.” 

While the statutory language at issue is certainly not “a model of 

clarity,” Snap’s interpretation makes little sense. (Touchstone, supra, 10 

Cal.5th at p. 365 (conc. opn. of Cantil-Sakauye, C. J.).) If Snap’s users allow 

it to use their content for other purposes, they do not have the expectation of 

privacy contemplated by the SCA. The interpretation that we adopt and that 

Pina advances is logical and supported by its legislative history showing a 

policy to protect private communications. Accordingly, the statute limits its 

privacy protections to situations where the provider is facilitating private 

communication or storing private information for its users, not when it is 

accessing and using content for its own purposes. “In other words,” the entity 

is not acting as an RCS that is “barred from disclosing communications 

content—and hence the entity [is] subject to a viable subpoena duces tecum.” 

(Ibid.)

Snap also argues that the real parties’ interpretation of the SCA yields 

absurd results because it “exclude[s] broad swaths of communications from 

the privacy protections Congress intended to confer” and “significantly 

undermine[s], if not destroy[s], providers’ ability to protect their users and 

platforms by identifying and taking action against users who are engaged in 

harmful and/or illegal conduct.” Snap also asserts that Pina’s interpretation 

would “strip the privacy protections that Congress designed the statute to 

create from an astronomical number of stored communications held by 

numerous providers and upon which both providers and users of those 

services have come to rely.” Snap, however, does not explain what exactly 

the disastrous consequences would be, or how the platform would no longer 
42

be able to protect its users or itself from harmful conduct. It is Snap and 

Meta’s decision to access its users’ communications that brings it outside the 

disclosure limitations of SCA, and neither provides a concrete explanation as 

to why their failure to comply with the statute’s requirements should be 

overlooked.

Similarly, Snap also argues that failing to apply the SCA to these 

communications is contrary to public policy because it would “negatively 

impact providers’ ability to protect their users and platforms by identifying 

wrongdoing, removing illicit content, and, when appropriate, reporting 

responsible individuals to law enforcement, unless providers and users alike 

are willing to forego SCA protection for their users’ communications.” 

However, Snap does not explain why any legal obligations that exist with 

respect to reporting wrongdoing or removing illicit content would be altered 

by a conclusion that they are not acting as an ECS or RCS provider under the 

SCA. 

Instead, Snap argues that if it is not an ECS or RCS provider, then it 

“would no longer be obligated under the SCA to preserve accountholder data 

pursuant to the requests of law enforcement and could no longer be bound by 

nondisclosure orders that prohibit them from disclosing the existence of legal 

process seeking user account data.” Even if the SCA does not apply to Snap 

and Meta, however, they are still required to comply with search warrants, 

law enforcement subpoenas, and court orders requiring the preservation of 

documents or other data or directing nondisclosure of a warrant or subpoena. 

Further, if they are not prohibited from disclosure by the SCA, Snap, Meta, 
43

and other social media companies like them, can voluntarily disclose 

wrongdoing to authorities.18

Meta also asserts an additional argument. Turning the concept of 

forfeiture on its head, Meta argues that whether the SCA applies to it is not 

properly before this court because neither it nor Pina raised the issue in the 

trial court. Meta’s assertion that Pina was obligated to address the 

application of the SCA is not well taken; he was under no requirement to 

address a federal statute he maintains is not applicable to the corporate 

entities he subpoenaed. Further, Meta’s failure to timely respond to the 

initial subpoena and subsequent court order by filing a motion to quash prior 

to the January 8, 2024 hearing, if anything, constitutes a forfeiture of Meta’s 

argument that the SCA bars it from complying with the court’s order. (See

Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548 [“ ‘ “New 

theories of defense, just like new theories of liability, may not be asserted for 

the first time on appeal.” ’ ”].) Finally, as Meta points out in its own reply 

brief, it did address the application of the SCA to Pina’s subpoena in the 

motion to quash it filed on January 8, 2024. 

In sum, we agree with Pina that the SCA does not apply in this 

particular circumstance to bar Snap and Meta’s compliance with Pina’s 

subpoenas based on these third parties’ ability to access and use their users’ 

content. We emphasize, however, that our conclusion that the SCA does not 

protect the communications at issue here does not mean the third party is 

authorized generally to publicize the information provided to them by their 

18 Snap also argues that the trial court’s order requiring it to comply with 

Pina’s subpoena violates the supremacy clause. However, because we 

conclude that the federal statute is not appliable to Snap and Meta in the 

circumstances presented here, there is no conflict of law to which the 

supremacy clause applies. Accordingly, we do not reach Snap’s argument.
44

users. Rather, their own contractual agreements with users govern the terms 

of their use of that information. As the Touchstone concurring opinion

notes—in response to Facebook’s argument “that if disclosure is not

prohibited by the SCA, a ‘provider could choose to disclose a communication 

to anyone’[—]“an entity that became known for disclosing its users’ 

communications on its own, without legal compulsion, would not long survive 

in the market—and hence would refrain from doing so in the first place.” 

(Touchstone, supra, 10 Cal.5th at p. 372, fn. 12 (conc. opn. of Cantil-Sakauye, 

C. J.).) 

Further, as that concurrence also points out, it is also not “likely that 

law enforcement actors would attempt to compel entities to disclose users’ 

communications with ... ‘a mere subpoena’; other laws and authority already 

protect against that.” (Touchstone, supra, 10 Cal.5th at p. 372.) Specifically, 

“California’s Electronic Communications Privacy Act (Pen. Code, § 1546 et 

seq.) generally requires a warrant or comparable instrument to acquire such 

... communication [and] precludes use of a subpoena ‘for the purpose of 

investigating or prosecuting a criminal offense.’ ” (Touchstone, at p. 372, 

fn. 13, citing Pen. Code, § 1546.1, subd. (b)(1)–(5).) And, “federal case law 

requires a search warrant, instead of a mere subpoena or court order, before 

a governmental entity may obtain private electronic communications.” 

(Touchstone, at p. 372, fn. 13.) 

We recognize the import of this decision and do not take lightly the 

policy arguments presented by Snap and Meta. However, we conclude that 

the plain language of the SCA provisions at issue and the legislative history 
45

behind them establish that the disclosure limitations contained in the Act do 

not apply to the material at issue here.19

DISPOSTITION

The petitions of Snap, Inc. and Meta, Inc. for writ relief are denied in 

part and granted in part. Let a peremptory writ issue directing respondent 

court to set aside its order of January 8, 2024, and issue a modified order 

directing petitioners to produce the subpoenaed information in camera to the 

respondent court for it to determine whether the material should be produced 

to Pina’s defense counsel. The stay issued by this court on January 24, 2024 

is vacated on August 2, 2024 and this decision is final forthwith. 

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

CASTILLO, J.

19 Because we decide this case based on the SCA, we decline to reach the 

constitutional issues raised by Pina in response to the petitions. (See Hunter, 

supra, 4 Cal.5th at p. 1275, fn. 31 [“we are guided by the familiar principle 

that we should address and resolve statutory issues prior to, and if possible, 

instead of, constitutional questions [citation], and that ‘we do not reach 

constitutional questions unless absolutely required to do so to dispose of the 

matter before us’ ”].)