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National Crime Victim Law Institute

Facebook v. Wint, --- A.3d ---, No. 18-CO 958, 2019 WL 81113 (D.C. Jan. 3, 2019)

February 21, 2019

Facebook sought emergency appeal of the trial court’s order finding it in civil contempt for failing to comply with the criminal defendant’s subpoenas duces tecum for records of communications related to certain Facebook accounts.  Facebook argued that the Stored Communications Act (SCA), 18 U.S.C. §§ 2701-02, prohibits Facebook from disclosing the requested records in response to a criminal defendant’s subpoena.  The District of Columbia Court of Appeals agreed with Facebook.  In reaching its decision, the court found that the plain text of the SCA prohibits Facebook from disclosing the contents of covered communications unless enumerated exceptions applied, and none of the enumerated exceptions applied to this case.  The court rejected defendant’s argument that the title of § 2702, referring to “[v]oluntary disclosure,” and the section’s use of the permissive “may divulge” can be interpreted to allow Facebook to comply with defendant’s subpoena.  The court found neither the section title, which has “limited utility when weighed against plain statutory language,” nor the use of “may divulge” supports defendant’s argument.  The court observed that from a policy standpoint, the SCA channels “such discovery to senders or recipients, rather than providers,” and doing so “increases the chances that affected individuals can assert claims of privilege or other rights of privacy before covered communications are disclosed to criminal defendants in response to subpoenas.”  In this regard, a “plain-language reading of the SCA … advances a significant interest and does not lead to irrational or absurd results.”  The court also rejected defendant’s reliance on the doctrine of constitutional avoidance, whereby defendant argued that the court should not interpret the SCA to preclude providers from complying with criminal defendants’ subpoenas because doing so would impermissibly interfere with a defendant’s constitutional right to present a defense.  The court explained that the doctrine of constitutional avoidance “‘is an interpretive tool” that courts apply when interpreting ambiguous statutory language, and this doctrine does not apply in this case because the SCA is unambiguous on the issue in question.  The court agreed it was possible that the SCA could, in a particular case, impermissibly interfere with a defendant’s right to compulsory process; but it deemed this unlikely given that the SCA has been in effect for over thirty years, and, with the exception of the trial court’s decision, the court has found no decision concluding that the SCA’s prohibition of disclosure “even raised a serious problem for[] a criminal defendant’s right of compulsory process.”  For these reasons, the court reversed the trial court’s order.