Can Defendants Get User Info From Social Media Sites?

By Christopher Coble, Esq. on September 15, 2015 | Last updated on March 21, 2019

Normally, when Facebook and the police collide in the news about a criminal case, it's because the social media site is handing over personal user information to law enforcement. Generally social media sites like Facebook, Twitter, and Instagram are required to comply with police warrants requesting user data, and convictions based on that information are upheld.

But does it work the other way around? Can defense attorneys get access to the same social media user information if it may exonerate their client?

What's Good for the Goose ...

A California court recently said no to a defendant's request for user information from Facebook, Twitter, and Instagram. Attorneys for a man charged in a drive-by shooting in San Francisco had issued subpoenas to the companies, seeking posts and activity logs for a key witness in the case. They hoped this information would demonstrate bias in the witness's testimony.

The social media sites contested the subpoenas, and the First District Court of Appeal unanimously said criminal defendants cannot access that information before trial:

"The consistent and clear teaching of both the 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 ... Simply alleging that the material they seek might be helpful to their defense does not meet defendants' burden to show that the [Stored Communications Act] is unconstitutional in denying them access to protected information at this stage of the proceedings."

... Is Good for the Gander?

Therefore, Facebook and the others did not have to turn over the user information. Yet. The court was careful to say that its ruling only applied to access to user information during pretrial production of evidence. The court left open the possibility that defendants could subpoena user data during the trial, "where the trial court would be far better equipped to balance the defendants' need for effective cross-examination and the policies the SCA is intended to serve."

Defense attorneys and the San Francisco Public Defender plan on appealing the ruling to the California Supreme Court. But for now, the long arm of the law has the upper hand in getting access to private user data on social media sites.

If you've been charged with a crime or need access to evidence for your defense, you should contact an experienced criminal defense attorney near you.

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