eDiscovery Daily Blog

• February 7, 2019

In Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019), the District of Columbia Court of Appeals, stating that “[t]he plain text of the SCA (Stored Communications Act) thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas”, concluded that the appellee “has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance” reversing the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint.

Case Background

The appellee was charged with murder in D.C. Superior Court. Before trial, he filed an ex parte motion asking the trial court to authorize defense counsel to serve subpoenas duces tecum on Facebook and a Facebook subsidiary for records, including the contents of communications, relating to certain accounts. Facebook objected, arguing that the SCA prohibits Facebook from disclosing such information in response to a criminal defendant’s subpoena. The trial court approved the subpoena request and held Facebook in civil contempt for failing to comply.

The case was argued back before the appellate court back in October 2018.

Appeals Court Ruling

In the appellate court opinion issued by Associate Judge McLeese, he noted that “In the trial court, Mr. Wint argued that if the SCA were interpreted to preclude Facebook from complying with the subpoenas at issue, then the SCA would be unconstitutional. Mr. Wint has not renewed that argument in this court, however, and that argument therefore is not before us. Rather, Mr. Wint has argued in this court only that the SCA is properly interpreted to permit Facebook to comply.”  He also noted this:

“The SCA broadly prohibits providers from disclosing the contents of covered communications, stating that providers “shall not knowingly divulge to any person or entity the contents” of covered communications, except as provided…The SCA contains nine enumerated exceptions to this prohibition…Mr. Wint does not rely on any of those exceptions, and none of them applies in the present case. The plain text of the SCA thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas.  The structure of the SCA points to the same conclusion.”

The opinion also noted that Section 2702 (Voluntary disclosure of customer communications or records) and Section 2703 (Required disclosure of customer communications or records) of the SCA “appear to comprehensively address the circumstances in which providers may disclose covered communications. Those circumstances do not include complying with criminal defendants’ subpoenas.”  The opinion also noted that “Authority from other jurisdictions also favors a plain-language reading of the SCA. As far as we have determined, every court to consider the issue has concluded that the SCA’s general prohibition on disclosure of the contents of covered communications applies to criminal defendants’ subpoenas.”

The appellee pushed for an alternative interpretation of § 2702, which addressed only the circumstances in which providers may voluntarily disclose covered communications and did not address compliance with court-ordered disclosures, such as subpoenas. In support of this interpretation, the appellee relied on six principal contentions, which were discussed in detail in the opinion. However, the opinion stated:

“Although some of Mr. Wint’s contentions have some force, on balance we are not persuaded by Mr. Wint’s argument.”

As a result, the appellate court reversed the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by the appellee.

So, what do you think?  Does the SCA, which has been in effect for over thirty years, adequately the rights to request data from providers in 2019?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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