Filed 5/24/18



## IN THE SUPREME COURT OF CALIFORNIA

FACEBOOK, INC., et al., ) ) Petitioners , ) )
v. ) S230051 ) THE SUPERIOR COURT OF THE CITY ) AND COUNTY OF SAN FRANCISCO ) Ct.App. 1/5 A144315 ) Respondent; ) ) San Francisco City and County DERRICK D. HUNTER et al., ) Super. Ct. Nos. 13035657, ) 13035658 Real Parties in Interest. ) )

I NT RODUCTION AND O VERVIEW Real parties in interest Derrick Hunter and Lee Sullivan (defendants) were indicted by a grand jury and await trial on murder, weapons, and gang

- related charges arising out of a drive

- by shooting in San Francisco

. Each defendant se rved a subpoena
duces tecum o n one or more petitioners, social media service providers Facebook, Inc. (Facebook), Instagram, LLC (Instagram), and Twitter , Inc. (Twitter) (collectively, social media providers, or simply providers) . The subpoenas broadly se ek public and private communications, including any deleted posts or messages, from the social media

accounts of the homicide victim and a prosecution witness.2

As explained below, the federal Stored Communications Act ( 18 U.S.C. § 2701 et
seq. , hereafte r SCA or Act ) 1 regulates the conduct of covered service providers, declaring that as a general matter they may not disclose stored electronic communications except under specified circumstances (including with the consent of the social media user who poste d the communication) or as compelled by law enforcement entities employing procedures such as search warrants or prosecutorial subpoenas

. Providers moved to quash defendants’ subpoenas, asserting the Act bars providers from disclosing the
communications s ought by defendants. They focused on section 2702(a) of the Act, which states that specified providers “shall not knowingly divulge to any person or entity the contents of” any “communication” that is stored or maintained by that provider. They
asserted that section 2702 prohibits disclosure by social media providers of any communication, whether it was configured to be public (that is, with regard to the communications before us, one as to which the social media user placed no restriction regarding who m ight access it) or private or restricted (that is, configured to be accessible

to only authorized recipients ) . Moreover, they maintained , none of various exceptions to the prohibition on disclosure listed in section 2702(b) applies here. And in any event , providers argued, they would face substantial technical difficulties and burdens if forced to attempt to retrieve deleted communications and should not be required to do so

. Defendants implicitly accepted providers’ reading of the Act and their conclu sion
that it bars providers from complying with the subpoenas. Nevertheless , defendants asserted that they need all of the requested communications (including any that may have been deleted) in order to properly prepare for trial and defend against the pe nding murder charges. They argued that the SCA violates their constitutional rights under the Fifth and Sixth Amendments to the United States Constitution to the extent it precludes compliance with the pretrial subpoenas in this case.

1 Future undesignated statutory references are to title 18 of the United States Code.3

The trial court , implicitly accepting the parties’ understanding of the SCA, agreed with defendants’ constitutional contentions, denied providers’ motions to quash , and
ordered them to produce the requested communications for the court’s review in camera

. Providers sought , and the Court of Appeal issued, a stay of the production order. After briefing and argument, the appellate court disagreed with the trial court’s constitutional
conclusion and issued a writ of mandate , directing the trial court to quash the subpoenas. We granted review. Our initial examination of the Act, its history, and cases construing it, raised doubts that section 2702 of the Act draws no distinction between public and restricted communications, and that no statutory exception to the prohibition on disclosure could plausibly apply here

. In particular, we questioned whether the exception set out in section 2702(b)(3), under which a provider may divulge a communication with the “lawful consent ” of the originator , might reasonably be interpreted to permit a provider

to disclose posted communications that had been configured by the user to be public. Accordingly, we solicited supplemental briefing concerning the proper interpretation of section 2702. In th at briefing , all parties now concede that communications configured by the social media user to be public fall within section 2702(b)(3)’s lawful consent exception to secti on 2702’s prohibition, and , as a result, may be disclosed by a provider. As we will explain, this concession is well taken i n light of the relevant statutory language and legislative history.
The parties di ffer , however, concerning the scope of th e statutory lawful consent exception as applied in this setting. Defendants emphasize that even those social media
communications configured by the user to be restricted to certain recipients can easily be shared widely by those recipients and become public. Accordingly, they argue that when any restricted communication is sent to a “large group” of friends or followers the
communi cation should be deemed to be public and hence disclosable by the provider under the Act’s lawful consent exception. On this point we reject defendants’ broad view4

and instead agree with providers that restricted communications sent to numerous recipients cannot be deemed to be public

— and do not fall within the lawful consent exception . Yet we disagree with providers’ assertion that the Act affords them “discretion” to defy an otherwise proper criminal subpoena seeking public
communications

. In light of these determinations we conclude that the Court of Appeal was correct
to the extent it found the subpoenas unenforceable under the Act with respect to communications addressed to specific persons, and other communications that were and
have remained co nfigured by the registered user to be restricted

. But we conclude the court’s determination was erroneous to the extent it held section 2702 also bars disclosure by providers of communications that were configured by the registered user to be public,
and that remained so configured at the time the subpoenas were issued. As we construe section 2702(b)(3)’s lawful consent exception, a provider must disclose any such communication pursuant to a subpoena that is authorized under state law. Ultimately, w heth er any given communication sought by the subpoenas in this
case falls within the lawful consent exception of section 2702(b)(3) , and must be disclosed by a provider pursuant to a subpoena, cannot be resolved on this record. Because the parties have not un til recently focused on the need to consider the configuration of communications or accounts, along with related issues concerning the reconfiguration or deletion history of the communications at issue, the record before us is incomplete in these respects. Accordingly, resolution of whether any communication sought by the defense subpoenas falls within the statute’s lawful consent exception must await development of an adequate record on remand

. We will direct the Court of Appeal to remand the matter to the trial court to permit the parties to appropriately further develop the record so that the trial court may reassess the propriety of the subpoenas under the Act in light of this court’s legal conclusions

.5 I. F ACTS AND L OWER C OURT P ROCEEDINGS A. Grand Jury Proceedings and Indictment 2 According to testimony before the grand jury, at midday on June 24, 2013, Jaquan Rice, Jr., was killed and his girlfriend, B.K., a minor, was seriously injured in a drive

- by shooting at a bus stop in the Bayview d ist rict of San Francisco. Various surveillance
video s showed a vehicle and someone firing a handgun from the rear window on the driver’s side. A second person was depicted leaving the vehicle from the rear passenger

side door and firing a gun with a large a ttached magazine

. Witnesses identified defendant Derrick Hunter’s 14

- year

- old brother , Quincy, as one of the shooters . During questioning in the early morning hours after the events, police homicide detectives told Quincy that they had “pulled all Inst agram .

. . [and] Facebook stuff,” and were aware that he knew the shooting victim. Quincy related that the victim had “tagged” him on Instagram in a video featuring guns. The detectives responded that they had been “working all day” on the matter and ha d “seen those posts.” Quincy admitted that he shot the victim six times

— and asserted that the victim “would have done the same thing to us.” 3 Quincy stated that “Nina,” his girlfriend’s sister, had provided the car in which he, his brother, and one o ther male had driven. Within a few minutes of the shooting , police

2 This and the following section s are based on the grand jury transcripts, of which we have taken judicial notice, as well as mater ial in providers’ a ppendix of e xhibits

— including pretrial moving papers and the transcripts of t wo sessions of a pretrial hearing.

3 Ultimately Quincy was tried in juvenile court , found to be responsible for Rice’s murder and the attempted murder of B .K ., declared a ward of the court, and committed to the Department of Juvenile Justice for a term of 83 years four months to life. Under Welfare and Institutions Code section 607, subdivision (b), however, because of his age at the time of the crimes, he will not be confined beyond his 25th birthday. After the Court of Appeal affirmed in an unpublished opinion (A142771) , we granted review (S238077) and h eld that matter pending disposition of the present litigation.6

had stopped Nina, whose real name is Renesha Lee (hereafter sometimes Renesha ), while driving the vehicle shown in the videos.
Renesha was codefendant Lee Sullivan’s then girlfriend. S he had rented the car used in the shooting and gave varying accounts of the events. According to her testimony before the grand jury, during the course of multiple interviews on the day and night of the killings, she initially “just made up names and stuf f.” Eventually she told the police that defendant Derrick Hunter and his younger brother Quincy were among those who had
borrowed her car. Renesha did not mention defendant Sullivan’s name until a few days later, when she “told them the truth about [Sull ivan],” and that he had been involved along with the Hunter brothers. Renesha related that on the day of the shooting she had driven with Sullivan and the Hunter brothers to a parking lot where they “got out and walked to Quincy[’s] house.” She explain ed that Sullivan told her the three young men were going to a store. Renesha recalled that she replied she would remain at the house and talk to her sister. She testified that Sullivan had not been wearing gloves when he and the others initially approach ed her to borrow the car, but she noticed that he was wearing gloves when they came out of Quincy’s house and when they departed. According to Renesha, Sullivan drove away
with the Hunter brothers in the backseat. She testified that when the three return ed the car to her shortly thereafter it contained the phones of Sullivan and Derrick Hunter. She also testified that she had never seen Sullivan or either of the Hunter brothers with a gun.
Renesha explained that she had initially not revealed Sullivan ’s involvement because she had been scared and “just didn’t want to have no parts of it because I’m the one that still has to live and walk these streets.” She elaborated that once the police informed her that she might be arrested for murder, she “told t hem the truth,” and yet still avoided implicating Sullivan until later in the process because she remained fearful of him. She maintained that after being threatened with prosecution she eventually told the full truth about Sullivan’s role.7

In presenti ng the case to the g rand j ury, the prosecution contended that defendants and Quincy were members of Big Block, a criminal street gang, and that Rice was killed for two reasons: (1) Rice was a member of West Mob, a rival gang, and (2) Rice had publicly thr eatened defendant Derrick Hunter’s younger brother Quincy on social media

. Inspector Leonard Broberg, a gang expert and member of the San Francisco Police Department Gang Task Force, testified that in his opinion the alleged crimes were
committed for the benefit of the Big Block gang. He explained that “gangsters are now in the 21st century, and they’ve taken on a new aspect of being gangbangers, and they do something they call cyber banging. [¶] They will actually be gangsters on the internet. They wi ll issue challenges; they will show signs of disrespect, whether it’s via images or whether it’s via the written word.

. . . [¶] [They use] Facebook, .

. . Instagram, Socialcam, Vine .

. . [ and ] YouTube.

. . . They will disrespect each other in cybersp ace.” Inspector Broberg described a You T ube video made by victim Rice and shared by him
via his Facebook account , in which he gave a tour of his West Point/ Middle Point neighborhood and identified specific places where he could be located

— including the bus stop where he was shot. Broberg characterized the video as a challenge to others.
In a subsequent declaration, Broberg explained that he “rel[ies] heavily on records from social media providers such as Facebook, Instagram, and Twitter to investigate and prosecute alleged gang members for gang crimes,” and that in the present case, he “relied in part on” such records to secure evidence that Rice, Sullivan, and the Hunter brothers “were members of rival gangs and that the shootings were gang related.” The same declaration adds: “We [the police] have not sought search warrants as to Renesha Lee.” 4

4 Toward the end of the proceedings, the prosecutor read to the grand jury some “exculpatory evidence .

. . that was requested by the defense attorneys in this case be presented to you.” The panel was told that two witnesses reported to police that a young woman had been driving the car, and that one witness had identified the driver as Renesha Lee. Yet another witness identified the driver as Quincy Hunter.8

Defendants were indicted and are presently charged with the murder of Rice and the attempted murder of B.K. They also face various gang and firearm enhan cements. (Pen. Code, §§ 187, 664, 186.22, subd. (b)(1), 12022, subd. (a), 12022.53, subds. (d) & (e)(1).)
B
. Description of t he S ubpoenas Prior to trial, in late 2014, b oth defendants served subpoenas duces tecum (Pen. Code, § 1326, subd. (b)) on Tw itter. Defendant Sullivan’s subpoena sought “[a]ny and
all public and private content” that had been “published by” Renesha Lee, who was identified by an attached photocopied screen shot of one of her Twitter accounts. The request specified no temporal b oundary and stated that it “includes but is not limited to” (1) so

- called record data, consisting of “user information [and] associated e

- mail addresses,” “activity logs,” and “location data” ; and (2) content information, such as “photographs, videos, priv ate messages, .

. . posts, status updates, .

. . , and comments including information deleted by the account holder.” It further sought the identity and contact information concerning the custodian of records who could authenticate the requested materials . Defendant Hunter’s subpoena, issued a few weeks later, sought all “accounts” and tweets originating from Renesha Lee’s “account and in response to or linking her account” from the beginning of 2013 “to the present.” Neither defendant sought from Twitte r any communication concerning victim Rice. Only defendant Sullivan served subpoenas on Facebook and Instagram. The Facebook subpoena requested information regarding the accounts of both Rice and Renesha Lee. The language of the subpoena tracked Sulli van’s request to Twitter, broadly seeking “[a]ny and all public and private content , ” including deleted material, that had been “published by” either Rice or Renesha Lee, each of whom was identified by an attached photocopied screen shot of that person’s F acebook account. As with Sullivan’s subpoena served on Twitter, the subpoena specified no temporal boundary and sought the same record data, content, and authentication information mentioned above.9

Sullivan’s subpoena served on Instagram similarly soug ht “[a]ny and all public and private content , ” including deleted material, published by Rice and Renesha Lee, each of whom was again identified by photocop ied screen shots showing their account information. 5 In all relevant respects the demands for record , content, and authentication information tracked the demands directed to the other social media providers

. C . Providers’ R esponses to the Subpoenas
Counsel for Facebook and its subsidiary Instagram responded to the Sullivan subpoenas by a single let ter in December 2014, asserting that as provider s governed by federal statute (the SCA), they are precluded under that law from divulging the requested stored communications. The letter stated that under the SCA only the government may compel covered prov iders to divulge such stored content. Accordingly, the letter recommended that defense counsel instead seek the requested information directly from the account holder or from “any party to the communication”

— persons who, unlike a covered provider, are “ not bound by the SCA.” Alternatively, the letter suggested that defense counsel might “work[] with the prosecutor to obtain” the requested information via an additional search warrant issued by the government. 6 A few days later , different

5 It appears from the record that there may have been up to four relevant Instagram accounts, at least one for Renesha Lee and possi bly three for Rice. A photocopied screenshot attached as an exhibit to the subpoena pertaining to Renesha Lee indicated the account had four posts, one follower, and eight accounts that the account holder was following. It also shows an image of a padloc k, with a notation, “this user is private.” According to subsequent pretrial briefing by defendants, “Mr. Rice had multiple social media accounts” and “many .

. . have been deleted, including accounts gang expert Leonard Broberg relied upon at the grand j ury hearing.” Moreover, according to that same subsequent briefing, defendants also asserted that “many of [Renesha Lee’s social media] accounts have been deleted.”

6 Finally , the letter explained that if defense counsel were to withdraw each subpoena “ to the extent it seeks content,” Facebook and Instagram might produce “non

content information” regarding the specified accounts, “such as basic subscriber information and [internet protocol] logs”

— information that defense counsel might use to contact ot her parties to the communications, in order to attempt to obtain the10

counsel in the same law firm responded similarly on behalf of Twitter to defendant
Sullivan. Eventually all three providers moved to quash the subpoenas. They reiterated the assertions in their letters that defendants might try to obtain the requested information
dir ectly from the social media user who posted the communication, or from any recipient 7

— or perhaps via an additional search warrant issued by the prosecution. 8 They also

information directly from them. ( “Ba sic subscriber information ” ( more fully described post , fn. 23 ) and internet protocol logs are forms of record/non

- content data that, as implied in the letter, might be employed to identify a recipient of a communication in order to attempt to obtain electronic communications directly from that person. )

7 In this regard, providers relied on decisions such as O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1447 ( O’Grady ) [even when the Act precludes disclosure by a provider, it “does not render the data wholly unavailable; it only means that the discovery must be directed to the owner of the data, no t the [SCA

- regulated service provider] bailee” who is barred from dis c losure]. (See generally Fairfield & Luna, Digital Innocence (2014) 99 Cornell L.Rev. 981, 1058 [suggesting that a “defendant could locate the relevant originator or recipient by accessi ng non

- content identifying information, such as an IP address, and then seek production [from that person] directly”].)

8 Of course defendants are independently entitled to general criminal discovery, including exculpatory evidence, from the prosecution under Penal Code section 1054.1. Moreover, under authority such as Brady v. Maryland (1963) 373 U.S. 83, People v. Salazar (2005) 35 Cal.4th 1031, 1042

- 1043 (and cases cited), and Barnett v. Superior Court (2010) 50 Cal.4th 890, 900

- 901, the prosecution is obligated to share with the defense any material exculpatory evidence in its possession

— including that which is potentially exculpatory. (See also Rules of Prof

. Conduct, Rule 5

- 110(D) , amended Nov. 2, 2017 [requiring “ timely disclosure to the defens e of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence”] and corresponding discussion [observing that “the disclo sure obligations in paragraph (D) are not limited to evidence or information that is material as defined by Brady v. Maryland

. . . and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or inform ation that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely.”]

. ) As explained below, c onsistent with its discovery obligations under state a nd federal law, the prosecution has apparently shared11

objected that the requests as drafted were overbroad and vague. In any event, provid ers asserted, disclosure directly from them , as entities covered by the SCA, was barred by that federal law. In that respect providers’ motions relied upon section 2702(a), which broadly states that a covered “person or entity” such as providers “shall no t knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service .” (Italics added.) Based on this language, providers asserted that the SCA’s prohibition on a provider entity’s ability to disclose an y content information applies broadly and does not depend on whether the registered user configured a given communication as private/restricted as opposed to public. Moreover, providers asserted, none of section 2702(b)’s exceptions to the bar on disclosu re by a provider applies here. Nor, they observed, does the Act contemplate procedures for criminal defendants to compel production of such communications.
D . Defendants’ O pposition t o the M otions t o Q uash Defendants opposed the motions to quash, 9 b ut they did not contest providers’ assertion that section 2702(a) prohibits providers from disclosing any of the sought
communications

— even those configured by the registered user to be public. Nor did defendants challenge providers’ assertion that none of section 2702(b)’s exceptions apply in this case. Instead, defendants argued that their federal constitutional rights under the Fifth and Sixth Amendments to a fair trial, to present a complete defense, and to cross

examine witnesses support their subp oenas and render the SCA unconstitutional to the

with defendants information relating to victim Rice’s social media accounts. (See post , fn. 10 .)

9 As the Court of Appeal observed below: “[T]he recor d b efore us [makes it unclear whether defendant] Hunter joined in the opposition to the motions to quash below, but he has formally joined in Sullivan’s arguments in this court. For simplicity’s sake, we refer to the opposition below as that of [ d]efendan ts collect ively.” We adopt the same approach.12

extent it purports to afford providers a basis to refuse to comply with their subpoenas. Defendants acknowledged that no court had ever so held, and asked the trial court to be
the first in the nation to do so. Defendants presented offers of proof concerning the information sought from the various accounts. The prosecution had secured from Facebook and Instagram some of
the available social media communications attributed to Rice and, as obligated, had
sh ared that information with defendants in the course of discovery. 10 Regarding the information concerning Rice’s communications , defendants asserted that review of the full range of content from those various accounts is required in order to “locate exculpa tory evidence” and to confront and cross

- examine Inspector Broberg, in order to challenge his assertion that the shooting was gang related. In support defendants cited Broberg’s grand jury testimony and attached examples of five Facebook screen shots
refl ecting videos alleged to have been posted by Rice. Counsel asserted that the subpoenaed records would show that Rice was “a violent criminal who routinely posted rap videos and other posts threatening Quincy Hunter and other individuals.” Although the prosecution had secured and shared some of Rice’s Facebook communications and a portion of the Instagram posts attributed to him, the prosecution had not sought from providers the social media communications of their key witness,
Renesha Lee. Nevertheless , it appears from the record that at least one of Renesha Lee’s Twitter accounts was public and contained numerous tweets that were accessible to defense counsel. Counsel evidently accessed that account and identified content that,

10 (See ante , fn. 8 .) Defendants subsequently asserted, however, that although they have had “access to some of Mr. Rice’s social media records through the disc overy process that tend to support the prosecution’s theory of the case,” still they lacked “access to records necessary to present a complete defense and to ensure the right to effective assistance of counsel.” Thereafter, in their joint reply brief file d in this court, defendants characterized the prosecution as having declined to obtain all of Rice’s various Instagram accounts.13

they asserted, indicate d a strong likelihood that other similar, yet undiscovered

— and possibly deleted

— communications might exist. Defendants alleged that the prosecution’s case turns on Renesha Lee’s credibility and that “she is the only witness who implicates Sullivan in the killing.” 11 Moreover, defendants explained , they sought
additional corroborating information, consistent with that found already in Renesha Lee’s public tweets, to demonstrate that she was motivated by jealous rage over Sullivan’s
involvement with othe r women and that she had repeatedly threatened others with
violence. In support of these assertions defendant s’ opposition appended, as an exhibit, photocopied screen shots of what was represented as two of Renesha Lee’s Twitter accounts. They quoted a September 2013 tweet showing a photograph of a hand holding a gun and making specific threats: “I got da. 30 wit dat extend clip..... BIIIITCH I WILL COME 2YA FRONT DOOR.....” Various other tweets from both accounts suggested a similar theme. Defendants a sserted their need for and intention to use these and any other similar tweets, posts, comments, or messages, including deleted content, made by Renesha Lee on Twitter, Facebook, or Instagram, in order to impeach her anticipated testimony at trial. Defens e c ounsel stated that , despite diligent efforts , Renesha Lee could not be located to be served with a subpoena duces tecum.
E
. The H earing o n the M otions t o Q uash
The first session of the bifurcated h earing on the motions to quash was held in early J anuary 2015 . The trial court began by explaining that, in light of the pleadings, it was inclined to find the sought material “critical” to the defense against the pending charges, and to conclude that “defendants have a [constitutional] right to .

. . in formation

11 Quincy, in his earlier confession, acknowledged that his brother Derrick was with him in the car when the shooting occurre d, but he did not mention Sullivan as being in the car with them. Instead, he asserted that a third person, named Johnson, had been with him and his older brother in the car.14

that’s authentic .

. . [and] reliable.” The court questioned providers’ alternative proposal that the prosecution could or should issue additional search warrants to them (the service providers) on behalf of defendants: “First, I think the Dist rict Attorney’s office is going

to .

. . say[],

. . . our job is not to perform your investigation for you. And, besides, the
Penal Code .

. . authorizes search warrants to be obtained [only] under certain circumstances, and .

. . not to find evidence tha t might support an affirmative defense or mitigate a mental state [or impeach a witness].” The court also expressed concern about defendants’ ability to obtain any tweets or posts that may have been deleted by the account holder, and regarding how those c ommunications might be authenticated sufficiently to be allowed into evidence. In that respect, the court questioned whether Renesha Lee would be willing to “take ownership” of tweets attributed to her and quoted above, “[s]ome [of which] could be subject ing her to criminal liability.” The trial court next addressed Twitter’s assertion that any “deleted contents” would “not [be] reasonably available” and hence providers would “not .

. . be able to produce deleted contents or authenticate deleted conten t.” The court expressed skepticism concerning Twitter’s assertion that it would be unable to produce deleted content, observing: “ [W]hat I .

. . know from my time in discovery [is] that when I delete

e

- mails, they are not all deleted. [¶] Now, I don’t know .

. . to what extent they are kept on some server or archive that could be retrieved through some sort of search function, or whether some forensic computer person has a way of reconstructing files or not. [¶] So

. . . if you are going to say that y ou complied and .

. . state under penalty of perjury [supported by a] showing .

. . that you have done what you can do, that’s a separate thing. But, I doubt very much I am going to change my position that this material is critical, it has to be produced, and you are the ones holding it.” Accordingly, the court tentatively denied the motions to quash and ordered that the materials be provided to it for in camera review pursuant to Penal Code section 1326. At the same time, the trial court allowed
additio nal briefing to be filed before it ruled finally on the matter.15

In its subsequent brief Twitter reiterated its assertion that section 2702 of the SCA fails to “distinguish between ‘private’ and ‘public’ content for purposes of its restrictions on provid ers’ disclosure” and it maintained that “service providers are prohibited from producing any content, regardless of status.” Facebook and Instagram asserted in their own subsequent brief that section 2702 of the SCA bars the requested discovery and that

t he Act “contains no exception for criminal defense subpoenas.” Consistent with their broad assertion that no exception applied under section 2702, they did not address whether any of the sought communications had been configured by the account holder to
b e public or private/restricted. Twitter, by contrast, directly confronted that issue in its own final supplemental responsive brief, noting that one of the accounts in question is public, and that “[a]s of this filing, anyone can visit the account and rev iew its content, including messages, photos, and videos. In fact, defendant has already done this and included some public content from the account in .

. . support of his Opposition [brief].” 12 In response, defendants contested the assertions by Facebo ok and Instagram that defendants could gain access to the sought communications by other means. 13 They

12 Twitter also stated: “On Twitter, if an account is public, its Tweets are public

— a user cannot make individual Tweets public or private on a post

- by

- post basis.” F urther , Twitter addressed the trial court’s stated concerns regarding retrieval of deleted content. It asserted that even if the SCA pe rmitted it to comply with th e subpoenas’ demands, still, any “content deleted by the user is not reasonably available to Twitter.”

13 Regarding Rice, defendants noted that because Facebook allows the default to be changed

— and posts to be confi gured as public or private on a post

- by

- post basis

— not all friends might have “content that Mr. Rice decided to withhold from a particular user.” As observed ante , footnote 10 , defendants conceded that they had access to some of Rice’s social m edia records through the discovery process. But, they insisted, they nevertheless lacked access necessary to present a complete defense. Regarding Renesha Lee’s social media records, defendants did not contest Twitter’s assertions that one of her Twitter accounts was public and remained open and accessible to all as of the time of the trial court briefing and hearings. Still, defendants asserted, “many of [her other] accounts” (apparently referring especially to the Facebook and Instagram accounts mentio ned earlier) “have been deleted,” and hence they had no access to them, and yet providers did possess those “inactive and active accounts.”16

argued that unless providers are ordered to comply with the subpoenas, they will be deprived of the information they need and also will be hampered in th eir effort to “persuade a jury that the records in question originated from Ms. Lee’s social media
accounts.” After considering the additional briefing, in late January 2015 the trial court confirmed its earlier conclusions, commenting that it would be “untenable” to deny the requested material to defendants. The court further explored with the parties the issues of deleted communications and burdens that compliance would impose on providers. In that regard counsel for providers asserted that deleted t weets “don’t persist in backup for all eternity” and to the extent some remained in storage, “they are going to be very cumbersome and burdensome to obtain.” The court responded that it had insufficient information with which to weigh the benefit of produ ction versus burdens, and noted that it could easily impose a temporal restriction on the information sought in order to render the request more reasonable and less burdensome. The court then asked counsel to address recovery of deleted content concerning “your other clients”

— Facebook and Instagram. But that discussion never occurred, producing an evidentiary lacuna as to those providers. Thereafter, neither the parties nor the court address ed whether a ny of the sought t weets had been configured as pub lic, or whether , for any time period, the user had protected the account and made tweets sent during that time accessible to followers only

. Nor did the court or parties address th e privacy configurations of the remaining
Facebook and Instagram communicat ions sought by defendants

. F . The T rial C ourt’s R uling on the Motions to Quash The trial court finalized its tentative rulings, denying all three motions to quash and ordering that providers submit all of the sought materials for its in camera revie w by a deadline in late February 2015. 14 The court stated that it understood providers might

14 As the Court of Appeal o bserved, defendant Hunter apparently did not formally oppose Twitter’s motion to quash his subpoena. Nevertheless, the trial court assumed17

seek writ review challenging its oral production order, and recognized that the Court of Appeal might stay its production order. After discussing the need for a preservation order ( see post , fn. 47 ), the court vacated the trial date, which had been set for the next day . A ll parties agreed to

reconvene in early March , after the trial court had an opportunity to conduc t in camera
review of the information that the providers had been ordered to produce, or alternatively

at a later date pending resolution of the writ proceeding providers intended to file contesting the court’s oral production order.
G

. The Writ of Man date Proceeding Providers jointly filed a petition for a writ of mandate in th e Court of Appeal contending that the trial court abused its discretion in denying the motions to quash. They asked the appellate court to “preserve the status quo” by issuin g an immediate stay of the trial court’s production order and planned in camera review. That court stayed the trial court’s production order and issued an order to show cause asking why the relief sought in the petition should not be granted.
After ful l briefing and oral argument, the Court of Appeal filed an opinion concluding that the SCA barred enforcement of defendants’ pretrial subpoenas and rejecting defendants’ arguments that the Act violated their rights under the Fifth and
Sixth Amendments to t he federal Constitution. Reviewing the relevant case law with respect to the constitutional claims, the appellate court concluded: “The consistent and clear teaching of both United States Supreme Court and California Supreme Court jurisprudence is that a criminal defendant’s right to pretrial discovery is limited, and lacks any solid constitutional foundation.” (Italics in original.) T he appellate court stressed, however, that its conclusion was confined to “ this stage of the proceedings ” and

such a motion and denied it on the same basis that it denied the motions to quash defendant Sullivan’s subpoenas.18

limited to the “pretrial context in which the trial court’s order was made.” (Italics in original.) It observed that defendants would remain free to seek “ at trial the production of the materials sought here

. ” The appellate court commented that the trial judge wh o would eventually conduct the trial “would be far better equipped ” than the appellate court itself “ to balance [defendants’] need for effective cross

- examination and the policies the SCA is intended to serve,” and suggested that the SCA might eventually n eed to be declared unconstitutional to the extent it precludes enforcement of such a trial subpoena issued by the trial court itself, or by defendants, with production to the court

. With respect to the pretrial context , however, the appellate court direct ed the trial court to vacate its order denying providers ’ motions to quash the pretrial s ubpoenas , and to grant the motion s to quash.

I I
. P ROPER I NTERPRETATION O F T HE S TORED C OMMUNICATIONS A CT Because the parties agreed in the trial court that the SCA precluded providers from complying with defendants’ subpoenas and the court accepted that proposition, the trial court proceeded on the assumption that providers’ refusal to comply with the subpoenas raised only constitutional questions. It then decided the matter by resolving those constitutional issues in defendants’ favor. As explained above, the Court of Appeal likewise viewed the case as raising only constitutional issues, and its decision in providers’ favor was grounded on the appellate court’s co nclusion that defendants’ constitutional claims were not viable in the pretrial context. In their initial briefing in this court, the parties again proceeded on the assumption that the litigation raised only constitutional issues, and they debated the m erits of defendants’ constitutional contentions. Defendants reiterated the view that their federal constitutional right to due process under the Fifth Amendment, and their confrontation, compulsory process, and effective assistance of counsel rights under the Sixth Amendment, require that the Act be declared unconstitutional to the extent it precludes19

the enforcement of their subpoenas in this case. They candidly recognized that case authority supporting their position is sparse. Ultimately, they suggest ed that we should overrule or distinguish our own decisions (especially People v. Hammon (1997)
15 Cal.4th 1117 and its progeny) in order to declare the SCA unconstitutional as applied and uphold their pretrial subpoenas. Providers, by contrast, asserted that no decision of any court supplies authority supporting defendants’ entitlement to pretrial enforcement of their subpoenas. They argued that, to the extent defendants might later at trial be able to establish a due process right to the information the y seek in order to secure a fair trial, their remedy at trial would not lie in a judicial declaration that the SCA is unconstitutional as applied to them. Instead, providers asserted, the trial court should at that time put the prosecution to a choice: (1 ) use its authority under the Act to acquire the sought materials on behalf of defendants and share them with defendants at trial, or (2) suffer consequences in the form of an adverse evidentiary ruling at trial , including potentially pivotal instructions to the jury, or outright dismissal of the prosecution’s case

. As mentioned, our initial review of the SCA and the relevant legislative history of the pertinent provisions, as well as prior judicial decisions addressing related issues, led us to question the validity of the statutory interpretation of the SCA on which the case was litigated below. Specifically, we questioned whether the relevant statute, section 2702(a), which appears to bar providers from disclosing electronic communications configured by the user to be private or restricted, also bars providers from disclosing communications that had been configured by the user to be public. Accordingly, we requested supplemental briefing directed to that issue, identifying the portions of the legislat ive history that appeared most relevant. As explicated post , part I II .A., in the ensuing supplemental briefing all parties concede that section 2702(b)(3)’s lawful consent exception permits providers to disclose public communications. In order to under stand the relevant provisions of the SCA and why we also conclude that the statute should be so construed, it is appropriate to review20

the Act’s general history, the language of the relevant statutory provisions, the specific legislative history of those p rovisions, and prior relevant case law.
A. The SCA

— History and General Background Congress enacted the Electronic Communications Privacy Act in 1986. (ECPA;
Pub.L. No. 99

- 508, 100 Stat. 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 Stored
Communications Act , or SCA. It addresses unauthorized access to, and voluntary and compelled disclosure of , such communications and related information. (§§ 2701

- 2712.) 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 legit imate needs of
law enforcement

. ” (H.R. Rep. No. 99

- 647, 2d Sess., p. 19 (hereafter House Report); see also Sen. Rep. No. 99

- 541, 2d Sess., p. 3 (hereafter Senate Report) [speaking of protect ing both “ privacy interests in personal proprietary information ” and “ the Government’s legitimate law enforcement needs”].) 15 Each report also highlighted a
related objective: to avoid discouraging the use and development of new technologies. 16

15 The House Report described privacy protection as “most important,” and noted: “[I]f Congress does not act to protect the privacy of our citizens, we may see the gradual erosion of a precious right. Privacy cannot be left to depend solely on physical protection, or it will gradually erode as technology advances.” (H ouse Report, supra , a t p. 19, fns. omitted.) The Senate C ommittee expounded on this theme, observing that “computers are used extensively today for the storage and processing of in formation,” and yet because electronic files are “subject to control by a third party computer o perator, the information may be subject to no constitutional privacy protection” absent new legislation. (Sen. Rep., supra, at p. 3; accord, H ouse Rep., supra, at pp. 16

- 19.)

16 In this latter regard , the House Report, noting the “legal uncertainty” tha t surrounded the government’s legitimate access to such stored information, expressed21

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. 17 A s th i s history
reveal s, 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 t his possible gap with the SCA.” ( Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It (2004) 72 Geo. Wash. L.J. 1208, 121 0. ) 18
concern that such conditions may expose law enforcement officers to liability, endan ger the admissibility of evidence, encourage some to improperly access communications, and at the same time, “unnecessarily discourage potential customers [from] using such systems

. ” (H ouse R ep ., supra , at p. 19.) Similarly, the Senate Report cited the same potential problems, and added that legal uncertainty might not only discourage use of “innovative communications systems” but also “may discourage American businesses from developing new innovative forms of telecommunications and computer tec h nology.” (Sen. Rep ., supra , at p. 5.)

17 For example, Congressman Kastenmeier, the bill’s pr imary author, stressed as a governing principle “that what is being protected is the sanctity and privacy of the communication.” (132 Cong. Rec. 14879 (1986), at p. 14886.) Senator Leahy, the bill’s sponsor in the upper house, repeatedly referred to the need to “update our law to provide a reasonable level of Federal privacy protection to these new forms of communications” in order to address inappropriate acquisition by “overzealous law enforcement agencies, industrial spies, and just plain snoops” of “p ersonal or proprietary communications of others.” (132 Cong. Rec. 14599 (1986), at p. 14600.) Cosponsor Senator Mathias described the leg islation as “a bill that should enhance privacy protection, promote the development and proliferation of the new comm unications technologies, and respond to legitimate needs of law enforcement.” ( Id ., at p. 14608.)

18 Congress’s conception of the intern et more than 30 years ago was , of course, substantially different from the internet that exists today. “The World W ide Web had not been developed, and cloud computing services and online social networks would not exist for nearly a decade. Internet users i n 1986 could essentially do three things: (1) download and send e

- mail; (2) post messages to online bulletin board s; and (3) upload and store information that they could access on other computers. The definitions and prohibitions listed in the SCA align with these three functions as they existed in 1986.22

B
. K ey P rovisions o f the SCA
1. Rules regarding unauthorized access to stored communications: Sections 27 01 and 2511(2)(g)(i) Section 2701(a) provides that , subject to specified exceptions, “whoever

. . . intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility” and “thereby obtains” an “electronic communication while it is in electronic storage in such system” commits an offense punishable by a fine or imprisonment. At the same time, a separate provision contained in another part of the ECPA, section 2511(2)(g)(i), articulates a substantial limitation on section 2701’s access prohibition: “It shall not be unlawful under .

. . chapter 121 [that is, the SCA] .

. . [¶]



### . . . to .

. .
access an e lectronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public .” 19

2. Rules prohibiting disclosure by service providers and listing exceptions under which providers are permitted to di sclose “communications” or “customer records”: Section 2702 Section 2702 addresses disclosure by certain covered service providers

— and by no other person or entity. ( Wesley College v. Pitts (D.Del. 1997) 974 F.Supp. 375, 389 .) Subsection (a)(1) declares that, subject to specified exceptions , “ a person or entity providing an electronic communication service [ 20 ] to the public shall not knowingly

Because Congress has not updated the statute, courts have stru ggled to apply the SCA in light of the explosive growth of the World Wide Web.” ( Ward, Discovering Facebook: Social Network Subpoenas and the Stored Communications Act (2011) 24 Harv.J.L

. & Tech. 563, 566, fns. omitted ( Discovering Facebook ). )

19 Secti on 2707 authorizes a civil action to enforce these and the following provisions of the SCA.

20 An electronic communication service (ECS) is defined as “any service which provides to users thereof the ability to send or receive wire or electronic communic ations.” (§ 2510(15).)23

divulge to any person or entity the contents of a commun ication while in electronic storage by that service .” (Italics added.) Similarly, and again subject to the same exceptions , subsection (a)(2) declares that “ a person or entity providing remote computing service [ 21 ] to the public shall not knowingly divulg e to any person or entity the contents of any communication which is carried or maintained on that service

. . . . ” (Italics added.) Finally, subsection (a)(3) bars any service provider from knowingly divulging any non

- content “record or other informatio n pertaining to a subscriber or customer” to any governmental entity.
The next two subsections of section 2702

— (b) and (c)

— list exceptions to the general prohibition on disclosure by a service provider set forth in subsection (a). Subsection (b) de scribes eight circumstances under which a provider “ may divulge the
contents of a communication

. ” As relevant here, subparts (1)

- (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 ”; (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; and (3) “with the lawful c onsent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of [a] remote computing service” (italics added). As explained below, some of the communications sought under the subpoenas at issue here m ay fall within the lawful consent exception set forth in section 2702(b)(3). 22

21 The term “remote computing service” (RCS) is defined as “the provision to the public of computer storage or processing services by means of an electronic communications system.” (§ 2711(2).)

22 The five other exceptions list ed in section 2702(b) include disclosure incidental to the provision of the intended service or protection of the rights or property of the service provider; matters related to child abuse; and disclosure to a law enforcement agency of inadvertently obtain ed information that appears to pertain to a crime.24

Finally, subsection (c) of section 2702 describes six circumstances under which a covered provider may divulge non
- content information

— that is, any “ record or other
informat ion pertaining to a subscriber or to a customer of such service (not including the
contents of communications

. . . ).” 23 As relevant here, the last of these exceptions permits disclosure “to any person other than a governmental entity” (§ 2702(c)(6))

— whi ch includes defendants in this case. 24
3. Rules governing compelled disclosure by a service provider to a governmental entity: Section 2703 As alluded to above, section 2703 governs compelled disclosure by covered providers to a “governmental en tity.” It sets forth the rules under which law enforcement entities may compel ECS and RCS providers to disclose private as well as public communications made by users and stored by covered service providers. 25

23 Such “non

- content” records consist of logs maintained on a network server, as well as “basic subscriber information,” including the following: “ (A) name; [¶] (B) address; [¶] (C) local and long distan ce telephone connection records, or records of session times and durations; [¶] (D) length of service (including start date) and types of service utilized; [¶] (E) telephone or instrument number or other subscriber n umber or identity, including any tempora rily assigned network address; and [¶] (F) means and source of payment for such service (including any credit card or bank account number).” (§ 2703(c)(2).)

24 The five preceding listed exceptions include disclosures of non

- content information (1) autho rized under compulsion by a “governmental entity” under section 2703; (2) with the lawful consent of the customer or subscriber; (3) as necessary and incidental to the provision of the intended service or prote ction of the rights or property of the service provider; (4) self

- initiated to a law enforcement agency under emergency conditions; or (5) related to child abuse. (§ 2702(c).)

25 (§ 2703(a) & (b).) As alluded to ante , footnote 23 , subsection (c) addres ses compelled disclosure to a governmental entity of certain non

- content information. Other subsections articulate the requirements of any court order compelling disclosure (§ 2703(d)), specify that there can be no cause of action against a provider who d iscloses information pursuant to this chapter (§ 2703(e)), and impose on providers a requirement to preserve evidence on request of a governmental entity “pending the issuance of a court order or other process” (§ 2703( f) (1) )

.25

C. House and Senate Reports Concerning th e Relevant Provisions The 1986 congressional reports took special note of then

- existing electronic
bulletin boards

— early analogues to the social media platforms at issue here. In the course of these discussions, the respective judiciary committees fo cused on the configuration of posts as being private or public and indicated an understanding that section 2701, governing unauthorized access to communications, was intended to cover and protect only private and not public posts. Significantly, the repor ts indicated the same understanding regarding section 2702’s ban on provider disclosure of electronic
communications , as reflected in that section’s lawful consent exception to the ban.
The extensive H ouse Report, issued first, repeatedly focused on the public/private
theme. It did so i nitially in a passage addressing section 2511(2) of the ECPA, which as noted above states in subsection (g)(i) that it “shall not be unlawful ” under either the
omnibus ECPA or its SCA subset to “ access an electronic commu nication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.” The committee explained that under this provision, it would be “ permissible to intercept electr onic communications made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public ” and that “[t]h e term

‘ configure ’ is intended to establish an objective standard of de sign configuration to begin determining whether a system receives privacy protection .” (House Rep., supra , at
p. 41.) Later, when the report addressed the SCA’s analogue to this access rule, it explained that section 2701 would not “hinder the developmen t or use of ‘electronic bulletin boards’ or other comparable services. The Committee believes that where
communications are readily accessible to the general public, the sender has, for purposes of Section 2701(a), extended an ‘authorization’ to the publi c to access those
communications . A person may reasonably conclude that a communication is readily accessible to the general public if the .

. . means of access [is] widely known, and if a26

person does not, in the course of gaining access, encounter any wa rnings, encryptions, password requests, or other indicia of intended privacy. To access a communication on such a system should not be a violation of the law .” (House Rep., supra , at p. 62, italics added.) On the other hand, the report noted, some elect ronic bulletin boards may provide, in addition to a public forum, private e

- mail services

— and it observed: “Section 2701 would apply differently to the different services

. Those .

. . electronic communications which the service provider attempt s to kee p confidential would be protected , while the statute would impose no liability for access to features configured to be readily accessible to the general public .” ( Id ., at p. 63, italics added.) The subsequent Senate Report similarly focused on electronic bulletin boards and repeatedly echoed the same public/private distinction. (Sen. Rep., supra , at pp. 8

- 9, 35

- 36.) The House Report next turned to the provision that we must construe here, section 2702, prohibiting disclosure by covered providers of co mmunications contents. The committee revealed its understanding that the theme of distinguishing between public and private posts carried over from section 2701’s access rule and applied as well to section 2702’s bar on the divulging of communications by providers. The report observed that although section 2702(a) articulates a general prohibition on disclosure by a provider, section 2702(b)(3), setting out one of eight exceptions to that rule, permits such a provider to divulge contents “with the lawful consent of the originator or any addressee or intended recipient” of the communication. (House Rep.,

supra , at p. 66.) The committee explained that, in its view, implied lawful consent by a

user

— and hence permissible disclosure by service providers

— would readily be found with regard to communications configured by the user to be accessible to the public. It stressed that consent as contemplated by section 2702(b)(3) “need not take the form of a formal written document of consent.” ( Ibid .) The repo rt viewed consent to disclosure as being implied 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 reasonable27

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 .” ( Ibid ., italics added.) 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 .” ( Ibid ., italics added.) Moreover, the report continued, “ I f 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 .” ( Ibid ., itali cs added .) In other words, the committee 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 free to divulge those
communications under sectio n 2702(b)(3)’s lawful consent exception. Nothing in the subsequent Senate Report took issue with this analysis . (Sen. Rep., supra , at pp. 36

- 38.)
D
. Cases Construing the SCA in L ight of the House and Senate Reports
Prior decisions have found that Facebook and Twitter qualify as either an ECS or RCS provider and hence are governed by section 2702 of the SCA. 26 All parties assume
th e same with respect to all three providers before us. We see no reason to question th is
threshold determination.

26 See, e.g., Crispin v. Ch ristian Audigier, Inc. (C.D.Cal. 2010) 717 F.Supp.2d 965, 987

- 990 ( Crispin ) [regarding Facebook posts and private messages]; Ehling v. Monmouth

- Ocean Hosp. Service Corp . (D.N.J. 2013) 961 F.Supp.2d 659, 665

- 670 ( Ehling ) [implicitly concluding the same rega rding Facebook posts].) A New York trial court has implicitly reached the same conclusion regarding Twitter tweets. ( People v. Harris ( N.Y. Crim.Ct. 2012) 949 N.Y.S.2d 590, 596.)28

Onl y a f ew decisions have construed the relevant provisions of the SCA, and nearly all have concerned civil li tigation. Most have focused on claims that a party had
obtained unauthorized access to stored communications under section 2701 , and hence
are not d irectly applicable here. Two decisions have addressed the question we face in
this criminal matter

— whether section 2702 bars covered service providers from divulging social media communications in response to a subpoena

. F or context

— and because, as w e will see, one of the key section 2702 disclosure cases subsequently relied
on some of the section 2701 access cases

— it is useful to briefly address th e access cases before discussing the disclosure decision s.

1. “Unauthorized access” cases interpre ting section 2701 Konop v. Hawaiian Airlines, Inc. ( 9th Cir. 2002) 302 F.3d 868 ( Konop ) concerned asserted unauthorized access to communications on a restricted and password

- protected electronic bulletin board. The Ninth Circuit panel, citing some of t he passages set out in the two judiciary committee reports noted above, concluded that this legislative history “suggests

. . . Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bul letin boards” and that Congress intended the configuration of communications would “ ‘establish an objective standard [for] determining .

. . privacy protection.’ ” ( Id ., at pp. 875 & 879, fn. 8, quoting House Rep., supra , at p. 41.) Subsequently, Snow v . Direct TV, Inc . (11th Cir. 20 0 6) 450 F.3d
1314 , quoted and extended Konop ’s observation. The Eleventh Circuit concluded that in light of section 2511(2)(g)(i) and some of the legislative history described earlier, Congress intended to confine the reach of section 2701’s access bar to those stored electronic communications that were configured to be restricted and not readily accessible to the general public. ( 450 F.3d at pp. 1320

- 1321 .) More recently, in Ehling , supra , 961 F.Supp.2d 659, a federal di strict court addressed a party’s asserted unauthorized access to a user’s restricted Facebook posts. The court highlighted the House Report’s understanding that the configuration of29

communications would determine whether any given post is “accessible to t he public” ( id ., at p. 666), and it relied on section 2511(2)(g)(i) (permitting access to communications that are “readily accessible to the general public”) as well as Konop and
Snow in concluding that “t he SCA covers: (1) electronic communications, (2) t hat were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public

. ” ( Ehling, supra, at p. 667, italics added.) The court found
that Facebook “ posts .

. . configured to be private meet all four c riteria

. ” ( Ibid .) In reaching this conclusion the court observed that decisions “ interpreting the SCA confirm
that information is protectable as long as the communicator actively restricts the public from accessing the information .” ( Id ., at p. 668 , ita lics added .)
The Ehling court elaborated : “ The touchstone of the Electronic Communications Privacy Act is that it protects private information. The language of the statute makes clear that the statute’s purpose is to pro tect information that the commu nicator took steps to keep private. ” ( Ehling, supra, 961 F.Supp.2d at p. 668.) It reasoned: “Facebook
allows users to select privacy settings

. . . . Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user. The Court finds that, when
users make their Facebook .

. . posts inaccessible to the general public, [ those ] posts are ‘configured to be private’ for purposes of the SCA.

. . . [W]hen it comes to privacy protection, the critical inquiry is whet her Facebook users took steps to limit access to the information [in their posts]. Privacy protection provided by the SCA does not depend on the number of Facebook friends that a user has.” ( Ibid

. , italics added. ) 27

27 The court in Ehling observed that the plaintiff user had “approximately 300 Facebook friends” (961 F.Supp.2d at p. 662), and concluded that because she had configured her communications as limited to them, the posts were covered by section 2701. ( Ehling, at p. 668.) Nonetheless, the court ultimately rejected the plaintiff’s claim of unauthorized access, finding that because an authorized r ecipient /friend had voluntarily shared the plaintiff’s restricted communications with others, section 2701’s “authorized user” exception was applicable. ( Ehling, at p p. 669

- 671.)30

2. “Prohibited disclosure” cases in terpreting section 2702 In addition to the civil decisions construing section 2701’s access rules and recognizing a public/private distinction in that setting, a few civil cases have concerned section 2702’s prohibition on disclosure , as applied to thir d party subpoenas designed to compel providers to divulge electronic communications by the providers’ users

.

a. O’Grady and related cases regarding subpoenas to providers seeking
e
- mail communications The first group of decisions addre sses requests for disclosure by e

- mail providers of their users’ e

- mail communications. A leading example is O’Grady, supra , 139 Cal.App.4th 1423 , in which a California appellate court held section 2702 prevented an e

mail service provider from complying with a subpoena issued on behalf of Apple Computer (Apple). Apple sought the e

- mail communications of an online news magazine to discover the identities of those who leaked confidential information about an impending Apple product. I n concluding that se ction 2702 prohibited disclosure by the provider of such private e

- mails ( O’Grady, at pp. 1440

- 1451), the court distinguished between public posts that were made available “to the world,” and the “contents of private [e

- mail] messages” at issue in that ca se. ( Id., at p. 1449, italics omitted.) The court noted that it would reach a different conclusion, and presumably find disclosure permissible, “if the discovery [could] be brought within one of the statutory exceptions

— most obviously, a disclosure wit h the consent of a party to the communication” under the lawful consent exception of section 2702(b)(3). ( O’Grady, at p. 1446; see also id. , at
p. 1447.) Likewise, other courts have concluded that section 2702 bar s e

- mail service providers from divulging private e

- mail communications in response to third party civil subpoenas when, as in O’Grady , no exception to the Act’s prohibitions on disclosure is applicable. (See, e.g., In re Subpoena Duces Tecum to AOL, LLC (E.D.Va. 2008) 550 F.Supp.2d 606, 611 [“[ a]greeing with the reasoning in O’Grady ” and declining to enforce31

a subpoena seeking production of private e

- mail communications absent an applicable exception to the prohibition on disclosure].)

b. Viacom and Crispin

— regarding subpoenas served on providers seeking social media communications Two additional section 2702 disclosure cases are more pertinent to our present inquiry because they concerned disclosure by service providers, not of private e

- mail, but
of social media communication s
. As explained below , these decisions reflect an understanding that Congress intended section 2702 to prohibit disclosure by providers of only private or restricted , but not public, social media communications

. The first opinion, Viacom Int’l Inc. v. YouTube Inc. (S.D.N.Y . 2008) 253 F.R.D. 256, addressed efforts by copyright owners to compel a social media provider, YouTube, to divulge stored information regarding videos that users had configured as private or restricted . ( Id ., at p. 264.) The federa l district court quoted the House Report’s observation, noted ante , part II.C., that one who posts a communication with a reasonable basis for knowing that it will be available to the public should be considered to have implicitly consented to such disclos ure under section 2702(b)(3). (253 F.R.D. at p. 265.)
The court h eld, however, th at YouTube was barred under section 2702(a) from disclosing “videos that [users] have designated as private and chosen to share only with specified recipients”

— and that on the facts presented, section 2702(b)(3)’s lawful consent exception was inapplicable. ( Viacom , at pp. 264

- 265.)
The second decision , Crispin , supra, 717 F.Supp.2d 965, also concern ed
disclosure by a social media service provider under section 2702 in r esponse to a civil discovery subpoena

. T he plaintiff in Crispin , an artist, sued the defendants, clothing manufacturers, asserting they violated a license to use his art. The defendants in turn issued subpoenas to various service providers, including Fac ebook and social media provider MySpace. The subpoenas broadly sought all manner of communications, ranging from public to private, between the plaintiff and others. The plaintiff moved to32

quash the subpoenas on various grounds, including that the provid ers were barred by section 2702 from making the disclosures. A magistrate concluded that the section did not apply, and declined to quash the subpoenas with respect to any of the
communications. On review, the district court, relying on the legislative history of the SCA and the
decision in Konop , supra , 302 F.3d 868, discussed above, determined first that so

- called “private messaging” communications, like the e

- mails in Konop , were configured to be private and hence protected from disclosure by service providers unde r section 2702(a)

. ( Crispin, supra, 717 F.Supp.2d at p. 987.) Turning to the other communications, Facebook posts and MySpace comments , the court analogized those communications to the technology that existed in 1986

— postings on a “ ‘ com puter bulletin board ’ ” system. ( Id ., at p. 980.) The court concluded that “a completely public [bulletin board system] does not merit protection under the SCA ”

— and that “ ‘[ o ] nly electronic bulletin boards which are not readily accessible to the publi c are protected under the Act .’ ” ( Id ., at
p. 981, italics added .) In other words, the court determined that Facebook posts and MySpace comments configured by registered users to be public are not protected from disclosure under section 2702(a) of the Ac t. But, the court reasoned, those
communications would not be subject to disclosure by a provider if the user, like users of
older restricted

- access electronic bulletin board s , had configured the post or comment to be accessible only by a restricted group

. ( Crispin , at p. 981.)
A ccordingly, the court in Crispin determined that the dispositive question was whether the posts had been configured by the user as being “sufficiently restricted that they are not readily available to the general public.” ( Cri spin, supra , 717 F.Supp.2d at
p. 991 .) Further, the court found that any restrictive privacy configuration employed by the user should be honored, and would bar disclosure by a service provider under33

section 2702 of the SCA, even if the restricted group i s comprised of all of a user’s Facebook friends. ( Crispin , at p. 990.) 28 Applying these principles to the motion to quash the civil subpoenas before it, t he Crispin court observ ed that the parties had provided an incomplete record regarding the

nature o f the various private message services and other posts and comments services offered by those social media entities. Accordingly, the court remanded the matter “ so that [the magistrate] can direct the parties to develop a fuller evidentiary record regardi ng plaintiff ’ s privacy settings and the extent of access allowed to his Facebook [posts] and MySpace comments. ” ( Crispin , supra , 717 F.Supp.2d at p. 991.) The gist of Crispin ’s discussion and treatment was that communications configured by the user to be restricted in some manner fall within section 2702’s prohibition on disclosure by providers and are not subject to a civil subpoena directed to those providers. On the other hand, the subpoenas would be enforceable to the extent they sought Facebook po sts and MySpace comments that had been configured by the registered user to be publicly accessible

. In reaching these conclusions Crispin relied heavily on the SCA’s access provisions and related case law

— and it focused generally on section 2702’s dis closure bar without also considering specifically the lawful consent exception set out in section 2702(b)(3). Accordingly, the decision can be read as concluding that if Congress intended to withhold liability under section 2701 concerning those who acces s public

28 The Crispin court reasoned : “ Although here a large number of [registered] users, i.e., all of plaintiff’s Facebook friends, might access the storage and attendant retrieval/display mechanism, the number of users who can view the stored message has no legal s ignificance. Indeed, basing a rule on the number of users who ca n access information would result in arbitrary line

- drawing and likely in the anomalous result that businesses such as law firms, which may have thousands of employees who can access document s in storage, would be excluded from the statute.” ( Crispin , supra , 717 F.Supp.2d at p. 990.)34

communications, Congress must also have intended not to protect those same public
communications from disclosure by covered providers under section 2702 . Under this view, which appears to have been endorsed by some commentators, 29 the Act simply

w ould not cover or protect communications that have been configured to be public. We do not endorse this reading of the Act, however. Instead, we conclude that, by virtue of section 2702(a), the Act generally and initially prohibits the disclosure of all (even public) communications

— but that section 2702(b)(3)’s subsequent lawful consent exception allows providers to disclose communications configured by the user to be public. Thus, although we agree with the result in Crispin , we conclude that the deci sion in that case should have been grounded on the lawful consent exception to the general prohibition

. As observed ante , part II.C., the House Judiciary Committee discuss ed the public/private distinction articulated under section 2511(2)(g)(i) of the E CPA, and
reveal ed that it viewed that same distinction as carrying over and appl y i ng under the
related access provision of the SCA, section 2701

. T he House Report then proceeded to
describe the disclosure provision, section 2702, in a manner showing that it considered the same public/private distinction to apply in that context as well via the lawful consent

29 See, e.g., Discovering Facebook, supra, 24 Harv.J.L

. & Te ch. at page 584 [“Under the SCA, information that is ‘readily accessible to the general public’ is not protected from disclosure”]; Hankins, Compelling Disclosure of Facebook Content Under the Stored Communications Act (2012) 17 Suffolk J. Trial & App

. Adv. 29 6, 314 , 319 [“case law has made clear that communications that are ‘readily accessible’ by the public are not protected by the SCA”; “whe re a user’s privacy settings allow the general public to view such communications, it is clear that the SCA will not gover n such ‘readily accessible’ communications”; and when comments can be “viewable by anyone wi th internet access” they “would not be protected by the SCA”]; see also Comment, Balancing the Scales of Justice ( 2011) 9 J. on Telecomm. & High Tech. L. 285, 296

- 297 [distinguishing Facebook’s private “user

- to

- user messaging functions,” which are similar to e

- mail , and that “would be protected by the SCA,” from posts and “publicly

- viewable” content “that would not be covered under the SCA”]

.35

exception contained in section 2702(b)(3)

. We conclude that the Crispin decision properly focused on the user’s configuration of communications, and it also reached the
correct result

— even though it did not explicitly rely , as it should have, on t he lawful consent exception and legislative history illuminating that exception

. 30
E. Conclusion Regard ing Section 2702(b)(3)’s Lawful Consent Exception In light of the foregoing analysis, we conclude that communications configured by a social media user to be public fall within section 2702(b)(3)’s lawful consent exception, presumptively permitting disclosure by a provider.

30 We also briefly note a recent Tennessee intermediate appellate court decision, State v. Johnson and Williams (T enn.Crim.App. 2017) 538 S.W.3d 32 ( Johnson ). That litigation, like the present case, arose pretrial in a criminal prosecution. A percipient witness told the police that various “social media communications” concerning the events had been sent and receive d by her, as well as the victim and other friends of the victim, and both defendants, before and after the alleged offenses occurred. ( Id ., at p. 38.) One of two defendants issued subpoenas to, among others, the relevant social media service providers, b roadly seeking all such communications. The state

— but not the providers

— moved to quash the subpoenas

. ( I d ., at pp. 44

- 48. ) The trial court denied the state’s motion as to the providers, finding that the state lacked standing to object on their behal f. ( Id. , at pp. 47

- 49.) On review the appellate court agreed and then proceeded, in dictum, to address matters that might arise on remand. The court described the evolution of the SCA, extensively quoted sections 2701, 2702 and 2703 , and briefly discu ssed some of the cases cited above, including Crispin

. ( Johnson, supra, 539 S.W.3d at pp. 63

- 69.) The appellate court next focused solely on section 2703, which as noted earlier concerns a governmental entity’s authority to compel disclosure from provide rs. ( Johnson , at pp. 69

- 70.) The court observed t hat the underlying defendants did not quali f y as governmental entities

— and from there jumped to the broad conclusion that the defendants “could not obtain ” pursuant to their subpoenas “ any information di rectly from the social media providers under the terms of the SCA

. ” ( I

d ., at p. 70, italics added .) In proceeding as it did, the Johnson court ’s dictum failed to consider the legislative history outlined above , the scope of section 2702’s disclosure bar , or the lawful consent exception to that bar. As a result, the court failed to consider whether any of the sought social media communications had been configured by the users to be public, and thus were disclosable by the providers pursuant to the defense subpoenas.36 I II
. A PPLICATION T O T HIS C A SE
A. Overview : The Parties’ General Agreement in Their Supplemental Briefs That Public Communications May Be Disclosed Under the Lawful Consent Exception; Limitation of Our Analysis to That Statutory Issue; and the Need for Remand to the Trial Court As alluded to earlier, in supplemental briefs concerning section 2702 filed in response to questions posed by this court, both parties now agree that a social media communication configured by a registered user to be public falls withi n section 2702(b)(3)’s lawful consent exception. 31 In reaching this conclusion, providers retreat from their assertions that no exception to the prohibition applies with respect to any of the sought communications. Providers concede that, based on the leg islative history described earlier, “[w]hen a user chooses to make a communication freely accessible to the public, he or she has necessarily consented to its disclosure.” Accordingly, providers acknowledge that “as applied to communications that are avai lable to t he public, [section 2702(b)(3)’s] lawful consent exception allows a provider to disclose communications to any member of the public.”

31 In their supplemental brief, provide rs initially maintain that defendants’ failure to challenge providers’ proposed statutory interpretation in the lower courts precludes this court from addressing the propriety of that statutory interpre tation at this juncture. We reject this con tention. It is this court, not defendants, that has raised issues different from those argued below. When this court discovers a possible statutory interpretation question that may obviate the need to address a constitutional claim and solicits supplemen tal briefing on that issue, the statutory interpretation question is properly before us for resolution. (See Rules of C ourt , rule 8.516(b) (2) [“The court may decide an issue that is neither raised nor fairly inc luded in the petition or answer if the case presents the issue and the court has given the parties reasonable notice and opportunity to brief and argue it”].) Here we are guided by the familiar principle that we should address and resolve statutory issues prior to, and if possible, instead of, cons t itutional questions (see, e.g., Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230

- 231, and cases cited), and that “we do not reach constitutional questions unless absolutel y required to do so to dispose the matter before us.” ( People v. Williams (1976) 16 Cal.3d 663, 667, and cases cited.)37

Nevertheless, both parties urge us to address not only the scope of the lawful consent exception, but also th e constitutional issues originally framed and briefed. As
alluded to in footnote 31 , and as explained below, we find it proper at this point to address only the statutory issues, and not the constitutional claims.
As obser ved earlier, in the lower court proceedings the parties did not focus on the public/private configuration distinction. The trial court made no determination whether any communication sought by defendants was configured to be public (that is, with regard t o the communications before us, one as to which the social media user placed no restriction on who might access it) or, if initially configured as public, was subsequently reconfigured as restricted or deleted. Nor is it clear that the trial court made a sufficient effort to require the parties to explore and create a full record concerning defendants’
need for disclosure from providers

— rather than from others who may have access to the
communications. Consequently, at this point it is not apparent that the court had sufficient information by which to assess defendants’ need for disclosure from providers
when it denied the motions to quash and allowed discovery on a novel constitutional theory. In any event, because the record is undeveloped, we do not know whether any sought communication falls into either the public or restricted category

— or if any initially public post was thereafter reconfigured as restricted or deleted

. I n light of our interpretation of the Act, it is possible that the trial co urt on remand might find that providers are obligated to comply with the subpoenas at least in part. Accordingly , although we cannot know how significant any sought communication might be in relation to the defense, it is possible that any resulting discl osure may be sufficient to satisfy defendants’ interest in obtaining adequate pretrial access to additional
electronic communications that are needed for their defense. For these reasons , we will not reach or resolve defendants’ constitutional claims at t his juncture . Instead, we
conclude that a remand to the trial court is appropriate.38

In order to provide guidance to the trial court on remand, we discuss two issues regarding the statutory question that have been raised by the parties in their suppleme ntal
briefs.

B
. Defendants’ Contention That I mplied Consent to Disclosure b y a P rovider I s Established When a Communication I s Configured b y the User t o Be Accessible t o a “Large Group” o f Friends o r Followers The parties now generally agree that comm unications configured by a social
media user to be public fall within section 2702(b)(3)’s lawful consent exception and presumptively may be disclosed by a provider. Beyond this point of agreement, the parties disagree starkly concerning the proper scope and interpretation of the implied consent exception. Defendants advance an expansive interpretation of the exception. They argue that a user’s implied consent to disclosure by providers under section 2702(b)(3) should be triggered not only by communica tions configured by the user to be public, but also by those configured by the user to be restricted , but nonetheless accessible to a “large group” of friends or followers . Defendants contend that, in practice, social media users “lose[] control over diss emination once the information is posted,” and can have no reasonable expectation of privacy even with regard to such restricted communications in light of the fact that any authorized recipient can easily copy any communication and
share it with others. (Cf. Moreno v. Hanford Sentinel, Inc . (2009) 172 Cal.App. 4th 1125,
1229

- 1230 [social media user had no reasonable expectation that a communication configured as restricted would not be shared with others and hence could not maintain a tort action for publi c disclosure of private facts].) Defendants observe that the internet, attendant technology, and social media itself did not exist when Congress considered and
enacted the SCA. (See ante , fn. 18 .) T herefore, they assert, section 2702 of the Act, generally prohibiting providers from disclosing stored communications, “should be39

deemed inapplicable” on the ground that “social media posts to large groups are essentially public posts in which the user has no reaso nable expectation of privacy.” In support, defendants rely primarily on distinguishable decisions finding social
media communications discoverable in civil litigation from a social media user , not, as here, from a social media provider. (E.g., Fawcett v . Altieri (N.Y.Sup.Ct. 2013) 960 N.Y.S.2d 593, 597 [private social media posts may be compelled from a user in civil discovery “just as material from a personal diary may be discoverable”].) They also rely
on cases such as U

. S. v. Meregildo (S.D.N.Y. 201 2) 883 F.Supp.2d 523, 526 ( Meregildo ) [rejecting Fourth Amendment claim and holding that a criminal defendant who restricted Facebook communications to “friends” had no legitimate expectation that a friend would not share that information with the governme nt].) But none of these cases involving the propriety of compelling disclosure by social media users concerned or construed section 2702’s prohibition on disclosure by providers

. Defenda nts criticize decisions such as Crispin, supra , 717 F.Supp.2d 965, and Ehling , supra , 961 F.Supp.2d 659, for analogizing social media communications to what they characterize as “nearly obsolete” electronic bulletin boards. They insist that focusing on such allegedly outdated sites prevented those courts from understandi ng that sharing is the essence of modern social media. Indeed, defendants and amici curiae on their behalf argue that, in the context of social media communications, there generally is no such thing as true privacy. Accordingly, they assert, even those s ocial media communications configured by a user to be available to only specific friends or followers and that exhibit a “veneer of privacy” should nevertheless be treated as public. Defendants argue that such communications should not be protected by sec tion 2702(a)

— or that, alternatively, they should be deemed to fall within the lawful consent exception of section 2702(b)(3). Providers and amicus curiae Google, LLC (Google), by contrast, assert that a registered user who configures a communication to be viewed by any number of friends40

or followers

— but not by the public generally

— evinces an intent not to consent to disclosure by a provider under 2702(b)(3), but instead to preserve some degree of priva cy. They too rely on Meregildo, supra, 88 3 F.Su pp. 2d 523, 525 , which o bserv ed that Facebook “postings using more secure privacy settings reflect the user’s intent to preserve information as private

. ” They also rely on Ehling, supra , 961 F.Supp.2d at
page 668 , which, as noted earlier, focus ed on whethe r a Facebook user “actively restrict[ed] the public from accessing information” and f ound that when a user configures a communication to be available on only a limited basis and “inaccessible to the general public,” such a post is “ ‘ configured to be priva te ’ for purposes of the SCA

. ” Under this authority, providers assert, a service provider remains prohibited from disclosing such communications. For reasons that follow, we agree with providers and Google on this point. To begin with, we reject defenda nts’ unsupported and rather startling assertion that
social media communications and related technology fall categorically outside section 2702(a)’s general prohibition against disclosure by providers to “any person or entity.” 32

32 For similar r easons we reject a somewhat related alternative interpretation of that quoted phrase advanced by amici curiae on behalf of defendants, the California Public Defenders ’ Association and the Public Defender of Ventura County. Asserting that the phr ase “any person or entity” in section 2702(a) should be interpreted to exclude a court, amici curiae propose to interpret that ph rase to permit providers to disclose any and all stored communications (no matter how configured) to a trial court for its in c amera review

— and then, presumably, for the trial court to release at least some of those private communications to defendants. In support of their argument that a trial court does not qualify as a person or entity under the statute, amici curiae simply cite Ma rbury v. Madison (1803) 5 U.S. 137. They argue that Congress must be presumed to have been aware of “existing law” (incl uding Penal Code section 1326’s in camera review procedures) as well as the Fifth and Sixth Amendment rights of defendants

— and hence, they postulate, Congress must have contemplated that such an exception for in camera and ex parte review by a trial cour t would be “read into the Act” by the courts, “when and if,” as here, “the need arises.” Amici curiae add that “Congress .

. . knows that the courts are the forum where controversies such as the one here will be resolved and that the courts will determine their own procedures”

— including amici curiae ’s contemplated compelled compliance41

Nor can we accept defendan ts’ interpretation of section 2702(b)(3)’s lawful consent exception, which would sweep far more broadly than was envisioned by Congress. The legislative history suggests that Congress intended to exclude from the scope of the
lawful consent exception comm unications configured by the user to be accessible to only specified recipients. There is no indication in the legislative history of any intent to do otherwise in the case of communications sent by a user to a large number of recipients who, even in 1986 when the Act was adopted, could have shared such communications with others who were not intended by the original poster to be recipients. In this respect, providers argue , defendants’ view “would effectively eliminate expectations of privacy in all com munications” and hence “would undermine the privacy rights of all users, including those of criminal suspects and defendants. If the SCA
excluded electronic communications that are made to [‘large’] groups of people, then it would necessarily place no res triction on private party or law enforcement access to such communications. And if people had no reasonable expectation of privacy in communications sent through and maintained by the intermediary, simply because those
communications could be later shared by their recipients, that would remove all Fourth Amendment protections for communications as well. ” (Italics in original.) Providers

assert t here is no indication that Congress contemplated such a result. 33

with in camera review by the trial court. Finally, amici assert that to the extent the Act “is interpreted to prohibit [in camera] judicial assessment of the exculpatory s ignificance of the subpoenaed records,” the SCA, as applied in this case, violates defendants’ Fifth and Sixth Amendment rights, and hence is unconstitutional. Putting aside the constitutional claim, neither the statutory language nor its legislative hist ory supports amici curiae ’s claim that the statute can reasonably be interpreted to permit disclosure of all electronic communications, private or public, to a court under all circumstances.

33 Moreover, as amicus curiae Google notes, if defendants’ “pre mise were correct, a communication shared with only one person would be equally public because a single
rec ipient could share a private communication with the world (and some recipients do).

. . . The ability to share an electronic communication according ly cannot be the basis42

As observed ante , part II.C., the House J udi ciary C ommittee suggested, in its
discussion of access rules, an understanding that a user’s conf iguration would “establish an objective standard” to determine privacy protection. When subsequently addressing
the disclosure rules

— and the lawful consent exception to those rules

— the House committee stressed that a user’s consent to disclosure could be implied in view of, among other things, providers’ available published policies. (H ouse Rep., supra , at p. 66.)
P roviders’ posted policies and answers to frequently asked questions (FAQs), described below, are readily available, and they appear to shed light on the issues presented in this litigation. Although we will highlight and quote some of these available policies and FAQs, we emphasize that in doin g so we do not preclude any party from advancing any additional point or argument

— including the legal significance that should or should not be accorded such policies and FAQs

. The policies and FAQs warn registered users that a communication configured as public will generally become , in the words of the House Report, supra , at page 62, “readily accessible to the general public,” and available to any person via the internet , whether that person is registered with the social media provider, or not. 34 Thi s

for removing privacy protections from content posted with less

- than

- public privacy settings.”

34 See, e.g., Twitter Privacy Policy, Information Collection and Use/Tweets, Following, Lists, Profile, and other Public Information < htt p://twitter.com/privacy > [as of May 22, 2018 ] [ the service “broadly and instantly disseminates your public information to a wide range of users, customers, and services, including search engines” ]; Facebook Help Center, Ap pearing in Search Engine Results < https://www.facebook.com/help/392235220834308> [as of May 22, 2018 ] ; Facebook Help Center, What is Public Information? <https://www.facebook.com/help/203805466323736?helpref=faq_content > [as of May 22, 2018 ] ; Instagram Help Center, Controlling Your Visibil ity <https://help.instagram.com/116024195217477> [as of May 22 , 2018]

. All internet citations in this opinion are archived by year, docket number and case name at < http://www.courts.ca.gov/38324.htm >

.43

widespread availability of public posts on the internet is the result of providers’ business model, which allows and facilitates crawling and indexing by search engines (and in some instances, use of a so

- called firehose stream ) that generate search resu lts lists displaying a link to the user ’s current social media page, a title and a snippet of text

. 35 In other words, when, for example, a Facebook user configures a post as public, that communication becomes both (a) available to all two billion registere d Facebook users, and (b) again in the words of the House Report, “readily accessible to the general public” via crawling by search engines. The result is that, as counsel for providers conceded at oral argument, a public communication is available to “ev eryone in the world”

— even to those who are not registered Facebook users, but who have open access to the internet. Providers’ FAQs warn that even communications configured as restricted still might be shared by an authorized recipient with anyone else

. 36 At the same time, nothing

35 See, e.g., Google Search, How Search organize s information <https://www.google.com/insidesearch/howsearchworks/crawling

- indexing.html> [as of May 22, 2018] ; Google Search Console Help, Create Good Titles and Snippets in Search Results < https://support.google.com/webmasters/answer/35624?hl=en > [as of May 22 , 2018]

. Regarding Twitter’s firehose stream , see, e.g., Financial Times Lexicon, Definition of Twitter fire hose <http://lexicon.ft.com/Term?term=Twitter

- fire

- hose> [as of May 22 , 2018]

. In addition, the three largest search engines

— Google, Bi ng , and Yahoo!

— also display in their results a link to a cached version of the social media user’s page. (See, e.g., Google, Search Help/ View webpages cached in Google Search Results/How to get a cached link < https://support.google.com/websearch/answer/ 1687222?hl=en > [as of May 22 , 2018] .) Google explains that “[c]a ched links show you what a webpage looked like the last time Google visited it ” and that “ Google takes a snapshot of each webpage as a backup in case the current page isn’t available

. . . . If you click on a link that says ‘Cached,’ you’ll see the version of the site that Google stored. ( Ibid .)

36 Even with regard to communications that a user configures

— either initially when sent, or subsequently as reconfigured

— to be available to on ly a defined group (such as followers or friends), any such restriction operates only within the confines of the service and the licensing agreements under which other entities interact with the provider

. Providers are generally careful to avoid describin g the effect of privacy configuration more broadly. ( See, e.g., Facebook Help Center, When someone re

- shares something I posted, who can see it? <https://www.facebook.com/help/569567333138410> [as of44

of which we are aware in any of providers’ policies or answers to FAQs sugges ts that users would have any reason to expect that, having configured a communication to be available not to the public but instead to a restricted g roup of friends or followers, the
user nevertheless has made a public communication

— and hence has impliedly consented to disclosure by a service provider, just as if the configuration had been public.

May 22, 2018] [“When someone clicks Share below your po st, they aren’t able to share your photos, videos or status updates through Facebook with people who weren’t in the audience you originally selected to share with ” (italics added , boldface omitted)

. ]) Accordingly, when a user configures a post to be ava ilable to only specifically listed persons, the provider w ill be able to honor that user’s choice only within the service

— by disabling those recipients from, in turn, sharing that communication with others within the system through the system’s sharing t ools . Moreover, a ll three providers warn users that such configuration protection within each system does not prevent any authorized recipient from employing mechanisms outside the system to copy any post (by, for example, downloading or creating a screen shot) and then sharing the communication with anyone on the internet. ( See, e.g., Twitter, About public and protected Tweets/Who can see my Tweets? < https://support.twitter.com/articles/14016 > [as of May 22 , 2018] [“ Keep in mind that when you choose to s hare content on Twitter with others, this content may be downloaded or shared ” ].) Indeed, a s Twitter advises, even when a user protects communications by restricting them to specific persons, that user’s communications might nevertheless be shared by any such person with anyone else. (Twitter Help Center , Twitter Privacy Policy/Information Collection and Use/Direct Messages and Non

- Public Communications < https://twitter.com/privacy?lang=en > [as of May 22 , 2018] [“ When you use features like Direct Messag es to communicate privately, please remember that recipients may copy, store, and re

- share the contents of your communications ” ]; see also Facebook, Data Policy/How is this information shared ?/Sharing our Services/Peo ple you share and communicate with <htt ps://www.facebook.com/policy.php> [as of May 22 , 2018] [“people you share and communicate with may download or re

- share this content with others on and off our Services”]; Instagram, Privacy Policy/ 3. Sharing of your information/Parties with whom you may c hoose to share your User Content < https://help.instagram.com/155833707900388 > [as of May 22 , 2018] [ “On ce you have shared User Content or made it public, that User Content may be re

- shared by others.

. . . [¶] If you remove information that you posted to the Service, copies may remain viewable in cached and archived pages of the Service, or if other Users or third parties using the Instagram API [Application Programming Interface] have copied or saved that information. ”].)45

For all of these reasons we reject defendants’ prop osed broad interpretation of the lawful consent exception. We hold that implied consent to disclosure by a provider is not established merely because a communication was configured by the user to be accessible to a “large group” of friends or followers. 37

C . Providers’ A rgument T hat Section 2702 Affords a Provider Discretion to Decline to Comply w ith a Valid State Subpoena Providers contend that to the extent section 2702(b)(3)’s lawful consent exception applies to any of the communications at iss ue here, that provision simply authorizes them to comply with the subpoenas, but does not by itself compel them to comply with the subpoenas. They further assert that section 2702(b) affords providers who are authorized to disclose, the “discretion” to re fuse to do so

— even in the face of an otherwise proper subpoena lawfully issued under state law. We agree with the first proposition, but not
with the second.

37 At the same time, we do no t endorse the view, expressed by counsel for providers at oral argument, that if it were possible for a registered Facebook user to restrict a communication to “only” all of the other two billion Facebook users, such a communication would not qualify as pu blic under the Act. To our knowledge, no case has endorsed that view and on its face the claim seems rather questionable, particularly inasmuch as Facebook does not generally limit who may join its social media platform. In this regard, we note that what is public under the SCA is not defined by what a social media provider labels as “public.” Nor are we aware of any prior case involving a user who has placed minimal restrictions on a communication within a large social media service (as another hypoth etical example, a user who might disseminate a communication to all two billion Facebook users except for one or two people). Although we hold that limiting a communication to a “large group” does not render a post public, and acknowledge that on remand t he trial court might find that the public configurations at issue in this case render the resulting communications public under the SCA, we also observe that neither the hypothetical discussed at oral argument nor this additional hypo thetical involving min imal restrictions is presented in this case. Therefore, we need not and do not resolve whether such communications would be sufficiently public to imply consent to disclosure under section 2702(b)(3).46

As observed earlier, section 2702(a) sets out a general prohibition against
disclosure of com munications by a service provider; and section 2702(b) lists exceptions under which a provider “may” disclose such communications

— including, in subsection (3), communications regarding which a user has lawfully consented to disclosure. As the parties ha ve conceded, such consent is applicable when a user posts a communication configured to be public. Plainly, section 2702(b) merely permits a provider to disclose, and it does not by itself impose a duty or obligation to disclose. Yet providers maintain

t hat by use of the word “may,” the section also operates to “ensure that providers would retain the discretion to choose whether to disclose content based on a user’s consent”

— even in the face of a lawful subpoena. In support, they rely on language in an order by a federal magistrate judge, I n re Facebook, Inc. (N.D. Cal. 2012) 923 F.Supp.2d 1204, 1206, stating that although “consent may permit production by a provider, it may not require such a production.” (Italics in original, boldface omitted.) Prov iders also rely on that order’s footnote 7, which cited United States v. Rodgers (1983) 461 U.S. 677, 706 for the general proposition that “[t]he word ‘may,’ when used in a statute, usually implies some degree of discretion.” As explained below, a Califo rnia Court of Appeal decision, Negro v. Superior
Court ( 2014) 230 Cal.App.4th 879 ( Negro ), has thoroughly considered and rejected providers’ argument. In that litigation, the plaintiff sued multiple defendants concerning
business transactions. Prior to t rial, the plaintiff subpoenaed defendant Negro’s e

- mail service provider, Google, seeking e

- mail communications between him, his codefendants, and others. Defendant Negro eventually expressly consented to disclosure by Google of

e

- mails between himself an d specific persons and entities covering a defined range of dates. But despite its user’s express consent, Google refused to comply with the civil subpoena. On review, the Court of Appeal considered and applied section 2702(b)(3)’s lawful consent excepti on, ultimately finding that the defendant had given his express and enforceable written consent to service provider Google’s disclosure of his e

- mails.47

( Negro , at pp. 893

- 899.) Having found the lawful consent exception satisfied, the appellate court furt her concluded that the subpoena was itself enforceable and that Google was required to comply with it. In the process, the court carefully considered and rejected the contention that providers raise now

— that the statute empowers providers to defy subpoe nas seeking communications that are exempted from section 2702’s prohibition on disclosure under the section’s lawful consent exception. ( Id ., at pp. 899

- 904.) Because we find the Negro court’s reasoning persuasive, we quote that decision’s analysis at s ome length. As an initial matter, the court in Negro , supra, 230 Cal.App.4th 879, rejected the claim that the SCA confers “a blanket exemption or immunity on service providers against compulsory civil discovery process.” ( Id ., at p. 899.) The court ackno wledged that the SCA does not, on its face, contain any exception for or mention of civil (or for that matter criminal) discovery subpoenas. But the court explained that the Act’s failure to expressly include such subpoenas does not “suggest that it rende red” the normal state law “discovery process impotent in all circumstances.” ( Ibid .) 38 Turning to the same argument reprised by providers here, the court in Negro addressed Google’s assertion “ that the language of the Act makes the consent exception

‘ per missive ’ and the provider ’ s disclosure under it ‘ voluntary ’ .

. . so that ‘ Google may not be compelled by an order issued in a civil proceeding to disclose content, even with

38 The court continued: “Nor do we .

. . perceive any thing in the language of the Act suggesting that Congress intended to grant service providers a blanket immunity from obligations imposed by discovery laws. The Act does not declare civil subpoenas unenforceable; it does not mention them at all

. As we ha ve said, it preempts state discovery laws insofar as they would otherwise compel a service provider to violate the Act. It is this preemption that excuses service providers from complying with process seeking disclosures forbidden by the Act. But nothing in the Act suggests that service providers remain shielded from state discovery laws when the disclosures sought are not forbidden by the Act.” ( Negro , supra, 230 Cal.App.4th at p. 900, fn. omitted, first italics added, subsequent in original.)48

the user ’ s consent. ’ ” ( Negro , supra, 230 Cal.App.4th at p. 900.) The appellate court observed that Google relie d on section 2702(b)’s “ use of the word ‘ may ’ to frame the exception for disclosure based on a user ’ s consent ,” and on the passage quoted above from the federal magistrate’s order in In re Facebook, Inc., supra, 923 F.Supp. 2d at page 1206. ( Negro , at p. 900.) The court determined that the magistrate’s reasoning “ places much more weight on a very small word than it is designed to bear. It is certainly true
that ‘ may ’ generally conveys permission, and that when used in cont radistinction to

‘ shall ’ it implies a discretionary power or privilege, as distinguished from a mandatory duty. [Citations.]” ( Id ., at p. 901.) But, the court reasoned, “Th e subdivision where ‘may’ appears is framed not as a grant of discretionary power or as the imposition of a mandatory duty but as a special exception to a general prohibition. In such a context all

‘ may ’ means is that the actor is excused from the duty, liability, or disability otherwise imposed by the prohibition. Stating that the a ctor ‘ may ’ engage in the otherwise proscribed conduct is a natural way

— indeed the most natural way

— to express such an exception.” ( Id., at p. 902 , italics in original .) The appellate court in Negro continued: “ Another federal magistrate judge has
observed that ‘ there should be a clear expression of congressional intent before relevant information essential to the fair resolution of a lawsuit will be deemed absolutely and categorically exempt from discovery and not subject to the powers of the court under [rules governing disclosure] .” [Citation.] Congress ’ s use of the word ‘ may ’ to frame an exception to the Act ’ s general prohibition on disclosure is not such a ‘ clear expression
of

. . . intent ’ as will justify a reading of the Act that categorical ly immunizes service providers against compulsory civil process where the disclosure sought is excepted on other grounds from the protections afforded by the Act. ” ( Negro , supra, 230 Cal.App.4th at p. 902.) Finally, the appellate court concluded: “ In sum, w e find no sound basis for the proposition that the Act empowers service providers to defy civil subpoenas seeking49

discovery of materials that are excepted from the Act ’ s prohibitions on disclosure. Insofar as the Act permits a given disclosure, it p ermits a court to compel that disclosure
under state law. ” ( Negro , supra, 230 Cal.App.4th at p. 904.) Accordingly, the court held that in light of the fact that the user/defendant had consented to disclosure by the service provider, “ the Act d oes not pre vent enforcement of a subpoena seeking materials in conformity with the consent given. ” ( Ibid .)
Providers do not directly address the logic or substance of the Negro court’s analysis quoted above. Instead, they assert , first, that the appellate court’ s decision is distinguishable because the underlying lawful consent in that case was express, whereas the present case concerns implied consent. This attempt to avoid Negro ’s analysis ignores the legislative history described ante , part II.C., disclosing that Congress specifically contemplated that implied lawful consent would satisfy the lawful consent exception . It also is in tension with providers’ own concession that implied lawful consent is effective with regard to communications configured by a reg istered user to be public. (See ante , pt. I II. A

. ) Alternatively, providers suggest that the SCA should be interpreted to bar the enforcement of any state subpoena that directs service providers to divulge public
communications that the Act permits but does not require them to disclose

. They assert
that Negro ’s contrary analysis and conclusion must be wrong because “it would permit a state subpoena to compel disclosure of content where the SCA itself does not. Such an expansion would weaken the protect ions of the SCA and impermissibly broaden federal law. It would thereby conflict with the SCA’s comprehensive scheme of regulating the circumstances under which the disclosure of content is permissible or required.” In this respect providers implicitly rely on the fact that section 2703 lists circumstances in which a provider is compelled to disclose to governmental entities

— and yet, as the Negro court observed, the Act, although preempting state discovery laws that would compel a provider to violate the federal statute, “does not mention” civil (or50

criminal) subpoenas issued by nongovernmental entities in that section or indeed at all. ( Negro , supra, 230 Cal.App.4th at p. 900; s ee ante , fn. 38 .) C onsistently with Negro ’ s analysis, we believe that if Congress intended to preclude a state from enforcing a nongovernmental entity’s civil or criminal subpoena that is lawful under state law (and as to which the federal statute does not preclude disclosure), such a prohibition would have
been made clear in the Act. We find no intent by Congress to preempt state law in this setting. 39

D . Additional Issues Raised i n the Supplemental Briefs, Some of Which Should Be Explored and Resolved on Remand t o the Trial Court Having addr essed the legal issues that can be decided on the present record, we turn to other matters raised in providers’ briefs that cannot be resolved at this stage

— and some of which must await exploration on remand.

1. Providers’ assertion that most of the communications at issue are private and hence the lawful consent exception will not assist defendants As observed earlier, the subpoenas in this case broadly seek “any and all public and private content.” Providers in their supplemental briefs as sert variously that “much” or “most” (or all except a “small subset”) of the communications sought by the subpoenas were configured by the users to be private or restricted, not public , and hence the lawful consent exception generally will not assist defen dants in this case. Because the parties did not acknowledge the relevance and applicability of the lawful consent exception in the trial court, no reliable record was made concerning either registered user’s configuration of the social media communication s at issue here. 40 Moreover, as noted

39 To t he extent dictum in Johnson , supra, 538 S.W.3d 32 , is inconsistent (see ante , fn. 30 ), we disagree with its approach and analysis.

40 A t the time relevant in this case, it appears that each provider’s default setting for
re gistered users was public, meaning that unless the user configured commun ications to be private, they were public . (Regarding Twitter, see Twitter Privacy Policy/Information Collection and Use/Tweets, Following, Lists, Profile, and other Public Informatio n51

earlier, it is not app arent that the trial court had sufficient information to fully assess defendants’ need for discovery when it denied providers’ motions to quash and allowed defendants discovery on a novel constitu tional theory.

2. Pro viders’ assertion that l awful consent to disclosure is revoked by a user’s reconfiguration of a communication from public to restricted or by a user’s deletion of a public communication As noted, providers concede that they may, pursuant to the lawful consent exception set forth in 2702(b)(3), disclose a post configured by the user to be public. They maintain, however, that the fact a user may have initially configured a post for public distribution should not necessarily resolve the question of the applicability of the

< http://twitter.com/privacy > [as of May 22 , 2018] ; regarding Facebook, see Electronic Frontier Foundation, Facebook’s Eroding Privacy Policy: A Timeline (Apr. 28, 2010) < https://www.eff.org/deeplinks/2010/04/facebook

- timeline > [as of May 22 , 2018] [obser ving that i n November 2009, Facebook reset user privacy default settings to public ]; see also Facebook Newsroom, Making it Easier to Share With Who You Want (May 22, 2014) < http://newsroom.fb.com/news/2014/05/making

- it

- easier

- to

- share

- with

who

- you

- want/ > [ as of May 22 , 2018] [noting that in mid

- 2014

— well after most of the communications at issue in this litigation were sent

— Facebook again changed its privacy policy default, reverting, for new users, from public to friends, and giving existing users new tools to help ensure that they post publicly only when they intend to do so ]; regarding Instagram , see Instagram Help Center , Controlling Your Visibility/Setting Your Photos and Videos to Private <https://help.instagram.com/116024195217477 > [as of May 22 , 2018] .) From what we can glean from the record, it appears that Renesha Lee may not have changed the default on one of her Twitter accounts and made her tweets and/or any replies private. (See ante , pt. I.D. and related d iscussion.) The record does not address the configuration of Renesha Lee’s Facebook communications. Finally, regarding Instagram, the record suggests that Renesha may have configured one Instagram account to be pri vate. In addition, the record suggests that she may have had, and delet ed, multiple additional accounts with some or all of the social media providers. The configurations of these additional accounts are unknown. (See ante , fn. 5 .) Regarding victim Rice, the limited record sugg ests that he had accounts, perhaps multiple, and of unknown configuration, with Facebook and Instagram

— and that some if not all of those accounts (including at least one relied upon by the prosecution’s gang expert) have been closed. ( Ibid .)52

lawful consent exception. Specifically, providers observe that a communication originally configured to be public subsequently can be reconfigured by the user to be restricted, can be delet ed by the user, or the user can close the account. 41 They argue that
when such a change occurs before a provider is served with a subpoena , the reconfiguration or deletion should be understood as a revocation of lawful consent for purposes of section 2702( b)(3)

— with the result that the provider would be prohibited by section 2702(a) from complying with a subpoena regarding any such communication. 42

41 In thi s regard Facebook tells users: “ If you accidentally share a post with the wrong audience, you can always change it. ” (Facebook, Privacy Basics /Manage Your Privacy < https://www.facebook.com/about/basics/manage

- your

- privacy/posts#6 > [as of May 22, 2018] ; s ee also Facebook Help Center, How can I adjust my privacy settings? <https://www.facebook.com/help/193677450678703?helpref=related> [as of May 22, 2018 ] [“ You can view and adjust your privacy settings at any time”] .) Twitter allows an account to be change d from unprotected to protected and vice versa, and states: “If you at one time had public Tweets (before protecting your Tweets), those Tweets will no longer be public on Twitter, or appear in public Twitter search results [within the provider’s system]. Instead, your Tweets will only be viewable and searchable on Twitter by you and your followers.” (Twitter Help Center, About public and protected Tweets/What happens when I change my Tweets from public to protected? <https://support.twitter.com/articles /14016#> [as of May 22, 2018] .) At the same time, Twitter explains, the opposite also occurs: “ If you later change your account settings to no longer protect your Tweets, Tweets that were previously protected will become public and may be indexed by thir d

- party search engines.” (Twitter Help Center, Why are my Tweets appearing on Google after deleting or protecting them? /Protected Tweets <https://support.twitter.com/articles/15349#> [as of May 22, 2018] .) Finally, Instagram also allows an account to be changed from the default (public) to private, and vice versa. (Instagram Help Center, Privacy Settings & Information/Privacy settings/How do I set my photos and videos to private so that only approved followers can see them? < https://help.instagram.com/19 6883487377501/?helpref=hc_fnav > [as of May 22, 2018] .)

42 Amicus curiae Google hypothesizes that any given communication originally configured as public, or any subsequent reverse reconfiguration of a communication from restricted to public, might conc e ivably be undertaken not by a registered user him

- or herself, but by a person or entity who uses or hacks the user’s account. Any such action, Google argues, should be viewed as not constituting implied consent to disclosure by a provider. We agree, and observe that the trial court on remand will be in a position to permit providers to attempt to establish, as a preliminary matter, that a given53

Defendants, by contrast, insist that once a registered social media user configures a communication as publ ic and posts it, triggering section 2702(b)(3)’s lawful consent exception and presumptively allowing disclosure by a provider, the user cannot subsequently revoke that implied consent to disclosure, even if the user promptly reconfigures any post as restri cted or deletes the post or closes the account. In support, defendants assert that “any reasonable user knows once you make information publicly available on social media it will be ‘.

. . broadly and instantly disseminate[d] ’ .

. . ‘to a wide range of us ers, customers, and services, including search engines, developers, and publishers

. . .’ just as Twitter advises in its terms of service .” 43 Defendants assert that after a public communication has been made so widely available , “[r]evoking consent is
as p ossible as un

- ringing a bell.” The parties have cited no decision explicitly addressing whether reconfiguration, deletion or account closure operates to revoke consent for purposes of section 2702(b)(3), nor have we found any such case. It appears that providers’ revocation claim poses a question of first impression. Providers may be understood to invoke Congress’s intent to protect users’ privacy (as described ante , p t. II.A.), and to suggest that their proposed interpretation

— under which a provider would be required to honor a user’s reconfiguration or deletion so long as it was undertaken by the time a subpoena is issued

— would afford greater protection to that privacy interest. 44 Defendants, on the other hand, question whether a social media

communication was configured, reconfigured, or deleted, by someone other than the registered account owner with out authority of the owner.

43 See ante , footnote 34

.
44 In support providers cite Van Patten v. Vertical Fitness Gr ou p, LLC (9th Cir. 2017) 847 F.3d 1037 , 1047, which notes the “common law principle that consent is revocable

. ” (Accord, Neder v. United States (1999) 527 U.S. 1, 21 [“ ‘ “[W]here Congress uses terms that have accumulated settled meaning under .

. . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate54

use r’s reconfiguration or deletion of a public post can in reality effectuate a revocation of
consent to disclosure 45

— and whether Congress intended to ensure revocability of consent in this context. Because the record does not indicate whether, in fact, any public
the established meaning of these terms” ’ ”]; Osorio v. State Farm Bank, F.S.B. (11th Cir. 2014) 746 F.3d 1242, 1253 [quoting a dictionary for the proposition that “ ‘[u]nder the common law understanding of consent, the basic premise of con sent is that it is “given voluntarily,” ’ ” and quoting the Rest.2d of Torts, § 892 for the proposition that

“ ‘Consent is a willingness in fact for conduct to occur’ ” and that “ ‘ “[C]onsent is terminated when the actor knows or has reason to know that t he other is no longer willing for him to continue the particular conduct” ’ ”]; see also State v. Brown (Ore. 2010) 232 P.3d 962, 967 [“[A] person who places an item in plain view has relinquished any constitutionally protected privacy interest in the item . That person, however, may renew the privacy interest simply by removing the i tem from plain view.”].)

45 In this regard, providers warn users, the acts of reconfiguration or deletion (or even account closure) do not reach outside the provider’s syste m and prevent third parties that may have indexed and cached any communication from continuing to make a given communication available in its prior form to anyone on the internet. For example, Facebook notes that in that situation it has no “ control over content that has already been indexed and cached in search engines ” and it offers the same advice as do Instagram and Twitter to their own registered users: in order to “ request the immediate removal of [a particular ] search listing, you will have to conta ct the specific search engine’s support team .” ( Facebook Help Center, Ap pearing in Search Engine Results/I’m showing up in the results of other search engines even though I’ve chosen not to < https://www.facebook.com/help/392235220834308/?helpref=hc_fnav> [as of May 22 , 2018] .) And yet even if a user identifies each search engine that displays the communication and seeks expedited recognition of any reconfiguration or deletion, the providers indicate that the most that can be said is that any given search engine will

“ eventually index updated



### . . . information” to reflect any reconfiguration protection or post deletion. ( Twitter Help Center, Why are my Tweets appearing on Google after deleting or protecting them? /How and when to send Google a request to re move information <https://support.twitter.com/articles/15349#> [as of May 22, 2018] .) Indeed, Instagram observes that there is no such thing as immediate reconfiguration or deletion of a public communication that has become available on a search engine; i nstead, “ [ i ] t may take some time for these [ other third party search engine] sites and Google to re

- index and remove ” a given communication “ even if you delete your account. ” ( Instagram Help Center, Controlling Your Visibility/Instagram Privacy on the Web /How c an I r emove my i mages f rom Google s earch <https://help.instagram.com/116024195217477> [as of May 22 , 2018] .)55

communication sought by defendants was subsequently reconfigured or deleted before the relevant underlying subpoena was issued, we express no opinion on the revocation of
consent issue

— and leave it to be explored , if necessary, by the trial court on remand

.

3 . Technical difficulties that providers may face in determining the applicable privacy configuration and retrieving deleted communications

— and p rotecting providers from excessive burdens
Providers assert that in light of a r egistered user’s ability to reconfigur e communications, “ providers may not easily be able to determine the intended audience of a communication at any given point in time” and “it may be difficult for a provider to accurately identify” whether a given comm unication when posted was public or restricted. Likewise, speaking on providers’ behalf, amicus curiae Google avers: “Providers do not routinely maintain records of past privacy settings for each post or message. Lacking such records, it would be imposs ible to determine the privacy configuration that applied when a communication was posted or sent.” (Italics added.) Providers also assert that “if a user changes the privacy setting for a communication, a service may not be able to accurately determine p rior privacy settings.” In addition, providers assert it would be difficult for them to retrieve deleted communications. As
noted by the trial court, however, a subpoena recipient has a general obligation to undertake reasonable efforts to locate respons ive materials . Again, a ny technical difficulties a given provider may face in determining the relevant history of a particular communication, or retrieving any deleted communication , are matters to be explored at the anticipated hearing on remand

. Provi ders similarly urge that they should be protected from excessive burdens. As
observed ante , part II.A., Congress articulated its main purposes in enacting the SCA: affording privacy protections to users while accommodating the legitimate needs of law56

en forcement . It also articulated a tertiary goal: to avoid discouraging the use and development of new technologies. Providers’ briefs characterize this additional purpose as one of “enhanc[ing] the use of communications services and protect[ing] providers from being embroiled as a nonparty in litigation.” Amicus curi a e on providers ’ behalf, Google, characterizes this additional purpose even more specifically as “protecting providers from an otherwise limitless burden o f responding to requests to disclose their users’ communications.” Providers rely on dictum in O’Grady, supra , 139 Cal.App.4th 1423, in which the court voiced concern about the prospect of such subpoenas to providers in routine civil cases. ( Id. , at p p . 1445

- 1447. ) 46
In light of the statut ory scheme, it appears that Congress sought to limit burdens placed on service providers by various means

— most obviously, by establishing broad prohibitions and specific exceptions regarding access and disclosure under sections
270 1and 2702 , along with r ules and procedures pursuant to which the government may compel disclosure under section 2703. With regard to burdens related to d isclosure in particular, Congress significantly limited the potential onus on providers by establishing a
scheme under which a provider is effectively prohibited from complying with a subpoena issued by a nongovernmental entity

— except in specified circumstances. But w hen any one of the exceptions does apply, there is no indication that Congress intended that providers would b e categorically relieved from the burden of compliance with an

46 In a related vein, p roviders observe that they stand in jeopardy of incurring civil liability under section 2707 of the Act if they kno wingly or intentionally violate the SCA. But t hat section by its terms contemplates liability only for a provider that violates the Act “with a knowing or intentional state of mind.” ( Id ., subd. (a).) Moreover, the statute provides a safe harbor for a p rovider who, in “good faith,” relies on “a court .

. . ord er.” ( Id ., subd. (e)(1).)57

otherwise lawful civil or criminal subpoena

. Hence, as the court held in Negro , supra , 230 Cal.App.4th 879, a provider may properly be subject to the burden of compliance with a subpoena, e ven with respect to communications configured by the registered user to be private , when a user expressly consent s to disclosure by his or her service provider. Likewise, a provider may properly be subject to the burden of compliance with a subpoena when a user implicitly consent s to disclosure by configuring
a social media communication as public

. Of course, any third party or entity

— including a social media provider

— may defend against a criminal subpoena by establishing that , for example, the propo nents can obtain the same information by other means , or that the burden on the third party is not justified under the circumstances . ( City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134; c f. Kling v. Superior Court (2010) 50 Cal.4th 1068, 1074

- 1075, 1078.) Indeed , the Act itself specifically contemplates that providers may raise such issues in the context of compelled disclosure to a governmental entity under section 2703(d) ( a court “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” ) , and the same principles would apply in the present setting. As noted, providers advanced similar arguments regard ing the burden of compliance with the subpoenas in the earlier trial court proceeding. ( Ante , part I.E.) In
response, the trial court ruled that absent additional factual information demonstrating impossibility or the extent of burden s , it could not eng age in any such balancing of58

production versus burden. Providers’ current claim of undue burden can properly be
ad dressed by the trial court on remand

. 47

47 The trial court on remand might also consider two additional and somewhat related legal issues that have been only generally alluded to in the briefing to date in thi s case , but which are highlighted i n our January 17, 2018 order granting review in the related matter of Facebook, Inc., v. Superior Court ( Touchstone ) (2017) 15 Cal.App.5th 729 ( S245203 ). That order directs the parties to address, among other things (1) whether a trial court may compel a witness to consent to disclosure by a provider, subject to in camera review and any appropriate protective or limiting conditions; and (2) whether a trial court may compel the prosecution to issue a search warrant under t he Act, on behalf of a defendant. Finally, yet a nother matter, not discussed in the parties’ briefs, may require consideration on remand. As alluded to ante , part I. F. , after the trial court confirmed its production ruling , c ounsel for defendant Sulliv an asked that pro viders be ordered to preserve all data at issue in this case. The court stated that it would not immediately issue an oral preservation order because it wanted the parties to first work out among themselves language addressing the provid e rs’ preservation obligations , and stated:

“ You will have to draft something and submit it, and see if you can reach an agreement. And if you get competing orders, we will have to have another hearing about that.” The record before us, however, contains no preservation order; no mention of such an order appears in the briefs; and the superior court docket for each case, as to which we have taken judicial notice, reflects no such order. (See, e.g., Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223 [addre ssing a party’s “failure to preserve evidence for another’s use in pending or future litigation” and corresponding sanctions].)59 I V. C ONCLUSION AND D ISPOSITI ON
We vacate the Court of Appeal ’s decision and direct that court to remand the matter to the trial court for proceedings consistent with this opinion.
CANTIL

- SAKAUYE, C. J.

WE CONCUR:
CHIN, J. CORRIGAN, J. LIU, J. CUÉLLAR, J. KRUGER, J. YEGAN, J. *

* Associate Justice of the Court of Appeal, Second Appellate District, Division Six, assigned by the Chief Justice pur suant to article VI, section 6 of the California Constitution.See next page for addresses and telephone numbers for couns el who argued in Supreme Court.

Name of Opinion Facebook, Inc. v. Superior Court

__________________________________________________________________________________ Unpublished Opinion Original Appeal Original Proceeding Review Granted XXX 240 Cal.App.4t h 203 Rehearing Granted

__________________________________________________________________________________ Opinion No. S230051 Date Filed: May 24, 2018

__________________________________________________________________________________ Court: Superior Co unty: San Francisco Judge: Bruce E. Chan

__________________________________________________________________________________ Counsel: Perkins Coie, Christian Lee, James G. Snell, Eric D. Miller, John R. Tyler, Sunita Bali; Gibson, Dunn & Crutcher, Joshua S. Lipshutz and Michael J. Holecek for Petitioners. Mayer Brown and Donald M. Falk for Google LLC as Amicus Curiae on behalf of Petitioners. No appearance for Respondent. Jose Pericles Umali for Real Party in Interest Derrick D. Hunter. Susan B. Kapla n and Janelle E. Caywood for Real Party in Interest Lee Sullivan.

Jeff Adachi, Public Defender (San Francisco), Matt Gonzalez, Chief Attorney, and Dorothy Bischoff, Deputy Public Defender, as Amici Curiae on behalf of Respondent and Real Parties in Intere st. Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Real Parties in Interest.

David M. Porte r; Law Offices of Donald E. Landis, Jr., Donald E. Landis, Jr.; Law Offices of J.T. Philipsborn and John T. Philipsborn for California Attorneys for Criminal Justice and National Association of Criminal Defense Lawyers as Amici Curiae on behalf of Real Par ties in Interest.Counsel who argued in Supreme Court (not intended for publication with opinion):

Joshua S. Lipshutz Gibson, Dunn & Crutcher 555 Mission Street San Francisco, CA 94105

- 0921 (415) 393

- 8200 Susan B. Kaplan 214 Duboce Street San Fra ncisco, CA 94103 (415) 271

- 5944