California's chief justice warned Facebook Inc.'s Gibson, Dunn & Crutcher attorneys that they can expect more court appearances over criminal defendants' access to private social media messages in order to build a defense.

During a video hearing Tuesday, California Supreme Court Chief Justice Tani Cantil-Sakauye said that the court had never confronted the constitutionality of subpoenaing social media companies for users' communications and the right to a fair trial, until Facebook v. Superior Court (Touchstone). It's the same legal question that the U.S. Supreme Court declined to take up Monday in a similar case against Facebook that alleged the company violated two criminal defendants' Sixth Amendment and due process rights when it refused to comply with their subpoenas.

In the Touchstone case, which has garnered amicus support from Apple and Google, criminal defendant Lance Touchstone is seeking the social media messages of a shooting victim in attempts to exonerate him from an attempted murder charge. However, Facebook has said that it cannot comply with the subpoena under the Stored Communications Act (SCA).

Gibson Dunn's Joshua Lipshutz, who represents Facebook's counsel in Touchstone and also helped file Facebook's denied petition for certiorari in Hunter v. Facebook, said that the underlying context in Touchstone is squarely governed by the court's decision in Hunter—that the SCA inhibits the disclosure of users' private messages and demands that defendants pursue alternative means to access the material.

Lipshutz offered a couple of alternative methods that don't directly involve Facebook, including subpoenaing the victim of the shooting or the defendant's sister, who allegedly received threatening communications from the victim.

However, public defender Katherine Tesch said the victim deleted the information and that they had heard a rumor that a family member was in contact with the victim at some point, but they don't have reason to believe it was Touchstone's sister. Only Facebook has access to these records, Tesch said.

Chief Justice of California Tani G. Cantil-Sakauye. (Photo: Jason Doiy/ALM)

Justice Joshua Groban asked Lipshutz if Facebook would still refuse to comply with the subpoenas based on the SCA if there weren't any other pathways to obtaining the information.

"I understand your argument to be that the act prevents us from turning this over even if there are no alternatives; we cannot turn this over full stop," Groban said.

"That's correct, your honor," Lipshutz said. But Lipshutz said there will always be other alternatives—there will always be senders or recipients who have access to the information. He also listed a number of situations, such as attorney-client privilege, where a party would deny exculpatory evidence under a statute or code.

"This is not unusual," he said. "I know it sounds unusual, where a party points to federal law and says, 'Look, I'm sorry, we cannot comply with the subpoena.' But there is no constitutional right for a criminal defendant to go directly to a provider in violation of federal law and obtain the information they seek for the criminal defense."

Justice Mariano-Florentino Cuéllar asked Lipshutz if the SCA did not apply and the whole case turned on the question of good cause, how should the trial court proceed?

"We wouldn't be here," Lipshutz said, noting that the Facebook content would be "cumulative and duplicative" after the court unsealed recent declarations supporting the good cause issue. "Facebook's only interest in this case is that federal law prohibits them from turning over the information."

Lipshutz also asked the court not to remand the case on the good-cause issue. Cantil-Sakauye said that whether or not the parties go back to court on the good-cause issue, "this is likely not the last Facebook case we are going to see here in California, particularly at the Supreme Court. You understand that, right?"