In a case that could determine how much access criminal defendants’ get to witnesses’ social media accounts pretrial, justices on the California Supreme Court on Tuesday probed a lawyer representing Facebook, Twitter and Instagram on where to draw the boundary between public and private in the digital world.
Under questioning from Justice Mariano-Florentino Cuéllar, Joshua Lipshutz of Gibson, Dunn & Crutcher said that only when users make a post public with no restrictions as to who can view it would there potentially be lawful consent for his clients to hand over data under the federal Stored Communications Act. The SCA governs how communications service providers must handle user data. Although prosecutors with a warrant can mine social media sites for evidence to put on their case, the SCA has so far been interpreted as preventing criminal defendants from gaining pretrial access to witnesses’ social media accounts.
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