You may not remember his name, but regular readers of this blog will likely remember the case of “Juror Number One,” a juror who made some comments on Facebook during a criminal trial. Not surprisingly, the judge investigated the juror misconduct – or tried to – but hit a snag when it came to actually seeing the Facebook comments. And that’s when things got interesting because the judge ordered the juror to consent to Facebook turning over his material. Juror One objected that it violated his rights under the Stored Communications Act (SCA), the Fourth and Fifth Amendments to the Constitution, and his state and federal privacy rights.
I blogged about my concerns as the case wound its way through the California courts.
Yesterday, Venkat Balasubramani alerted me to a ruling by the California Court of Appeal in Sacramento.
Of note, the court held that the SCA did not apply to this situation because Juror One didn’t offer any rationale to support that claim:
Juror Number One has provided this court with nothing, either by way of the petition or the supporting documentation, as to the general nature or specific operations of Facebook. Without such facts, we are unable to determine whether or to what extent the SCA is applicable to the information at issue in this case. For example, we have no information as to the terms of any agreement between Facebook and Juror Number One that might provide for a waiver of privacy rights in exchange for free social networking services. Nor do we have any information about how widely Juror Number One‟s posts are available to the public.
As significantly, they note that even if the SCA did apply to Facebook postings that were only available to a select group of individuals, it would not apply in this case because it was not Facebook being ordered to provide the material. The compulsion was on Juror One to consent, thereby waiving any rights under the SCA:
… the question here is not whether respondent court can compel Facebook to disclose the contents of Juror Number One‟s wall postings but whether the court can compel Juror Number One to do so. If the court can compel Juror Number One to produce the information, it can likewise compel Juror Number One to consent to the disclosure by Facebook. The SCA has no bearing on this issue.
Sadly, a lot of the most interesting questions were never addressed because Juror One provided no argument or support for his claims, allowing the court to just dismiss them without consideration.
As @bmaz had suggested to me in our conversation on Twitter, the court noted that any privacy rights must fall to the Sixth Amendment rights of the defendants in the criminal trial. Having already demonstrated that juror misconduct definitely occurred, the court had a right – and duty – to determine if the Facebook posts indicated any bias or prejudice on Juror One’s part. While Juror One might think that simply denying any bias should satisfy the court, the judge had a right to compel production of the material to determine if there was indication of bias or prejudice.
Of interest to me was the concurring opinion by Judge Mauro, who expressed the concerns I had raised about compelled “consent:”
In essence, the trial court‟s order is an effort to compel indirectly (through Juror Number One) what the trial court might not be able to compel directly from Facebook. This is arguably inconsistent with the spirit and intent of the protections in the SCA. Compelled consent is not consent at all. (See, e.g., Schneckloth v. Bustamonte (1973) 412 U.S. 218, 228, 233 [36 L.Ed.2d 854, 863, 866] [coerced consent is merely a pretext for unjustified intrusion].)
The lead opinion explains that “[i]f the court can compel Juror Number One to produce the information, it can likewise compel Juror Number One to consent to the disclosure by Facebook.” (Maj. opn. at p. 14.) This may ultimately be true, but here the trial court bypassed a determination as to whether it could compel Juror Number One to produce the documents.
The take-home message seems to be that while courts cannot engage in fishing expeditions, if there’s evidence of juror misconduct, they may be able to compel the juror to provide the material, or in the alternative, to compel the juror to consent to the service provider turning over the material.
Update: Orin Kerr has also blogged about this case on The Volokh Conspiracy. We seem to have picked up on the same main points and issues, but Orin goes further:
My sense, then, is that the trial court’s order is quite inappropriate. In effect, the court is trying to trick Facebook into inadvertently violating the SCA by making Facebook think that there is consent that allows Facebook to disclose the updates lawfully. If Facebook’s lawyers catch on, they will realize that this consent is invalid and should refuse to disclose the status updates to the court. But depending on how this is presented to Facebook, the folks at Facebook may not realize that the consent is invalid. Under the good-faith exception to civil liability, Facebook would probably escape civil liability in that situation. But the trial court should not be putting Facebook in this position anyway: Assuming that executing a scheme to have a party unknowingly violate the SCA violates the statute, then this would seem to violate the SCA. And even if executing such a scheme does not technically violate the statute directly, surely it is inappropriate for a judge to do such a thing.
What other options does the court have? The most obvious possibility is that the court should allow the losing party to subpoena the juror for all of the status updates during the relevant period that are relevant to the trial. The solution isn’t perfect. The juror might not comply with the subpoena, for example. But the Stored Communications Act limits compelled access to contents of communications directly from providers, and there does not appear to be an exception that applies here.