Facebook, Inc. v. The Superior Court of San Diego County, Lance Touchstone, Real Party in Interest; Summer Stephan, as District Attorney, etc. Intervener

Opinion of the Court by Cantil-Sakauye, C. J.

We granted review to address the propriety of a criminal

defense subpoena served on Facebook, seeking restricted posts

and private messages of one of its users who is also a victim and

critical witness in the underlying attempted murder

prosecution.

In addition to discussing the Fifth and Sixth Amendment

issues presented in this and recent related litigation (Facebook

v. Superior Court (Hunter) (2018) 4 Cal.5th 1245 (Facebook

(Hunter)), the parties raised four related preliminary legal

issues, all potentially dispositive, in the course of their briefing.

In the meantime, our review of the record — including a

key declaration and exhibits that had been presented to the trial

court ex parte and sealed (and hence kept from Facebook, as well

as from the prosecuting authority below, intervener San Diego

County District Attorney (hereafter the district attorney)) —

raised questions regarding whether this case presents an

appropriate vehicle to resolve any of the earlier briefed legal

issues. Specifically, our review raised the question whether the

underlying subpoena was supported by good cause and, if not,

whether the trial court’s denial of Facebook’s motion to quash

the subpoena should be vacated and the matter remanded to the

trial court for further proceedings regarding that motion.

Accordingly, after giving the parties notice and an

opportunity to comment, we unsealed the declaration and

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2

related exhibits, took judicial notice of the preliminary hearing

transcript and related exhibits, and solicited supplemental

briefing from all three parties concerning the adequacy of the

justifications for the subpoena. In response, real party in

interest Lance Touchstone, defendant in the prosecution below

(hereafter defendant) filed a supplemental brief maintaining

that the subpoena is supported by good cause, and that the trial

court properly denied Facebook’s motion to quash. By contrast,

the supplemental briefs filed by Facebook and the district

attorney contend that defendant failed to state sufficient

justification for acquiring the sought communications, and that

the subpoena is not supported by good cause. When it came time

to file reply briefs in the latest round of briefing, Facebook and

the district attorney did so, responding to defendant’s

arguments. Defendant did not file a reply.

The most recent briefing has not alleviated our initial

questions concerning the viability of the underlying subpoena.

As explained in greater detail below, the trial court erred by

conducting an incomplete assessment of the relevant factors and

interests when it found that defendant established good cause

to acquire the sought communications from Facebook and

denied Facebook’s motion to quash. The trial court’s misstep

was understandable, given that (1) the trial court did not have

the benefit of full adversarial engagement, (2) there is

surprisingly little guidance in the case law and secondary

literature with regard to the appropriate inquiry, and (3) this

court has not previously articulated a clear roadmap or set of

factors to be applied by trial courts in this context.

In this case, we will provide direction to the trial court and

parties, both for the benefit of this litigation and other similar

cases. In doing so we will highlight seven factors that a trial

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Opinion of the Court by Cantil-Sakauye, C. J.

3

court should explicitly consider and balance in ruling on a

motion to quash a subpoena duces tecum directed to a third

party. In the process we will reiterate our prior caution to trial

courts against readily allowing a defendant seeking to enforce

such a subpoena to proceed, as was done here, ex parte and

under seal.

With regard to the other issues potentially presented by

this case, we are generally reluctant to address significant

substantive legal issues when, due to underlying factual and

related problems, it may prove unnecessary to do so. Here, as

we will explain, we are especially disinclined to resolve the

important constitutional, statutory, and related issues

addressed in the briefs when the underlying subpoena may not

be enforceable for other reasons.

Ultimately, we will direct the Court of Appeal to remand

this matter to the trial court with directions that the trial court

vacate its order denying the motion to quash and conduct

further proceedings consistent with the guidelines set forth in

this opinion.

I. BACKGROUND AND

UNDERLYING PROCEDURE

In Facebook (Hunter), supra, 4 Cal.5th 1245, we addressed

issues concerning the propriety of criminal defense subpoenas

served on social media entities, including Facebook, seeking

restricted posts and private messages of two of their users. We

held, in part, that to the extent such a subpoena seeks a

communication that had been configured as and remained

public, Facebook could not assert the federal Stored

Communications Act (18 U.S.C. § 2701 et seq.; hereafter SCA or

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4

Act) as a shield to block enforcement of the subpoena. (Id., at

pp. 1250, 1262–1274.)

At the time when the proceeding in Facebook (Hunter),

supra, 4 Cal.5th 1245 was pending in this court, we granted

review in this seemingly similar pretrial criminal discovery

matter. In the present case, defendant is charged with shooting

and attempting to murder Jeffrey Renteria. Defendant seeks all

of Renteria’s Facebook communications (including restricted

posts and private messages) before and after the shooting.

Defendant argues that he needs all electronic

communications by Renteria in order to prepare his defense in

two respects: Primarily, he contends, he has a viable claim of

self-defense against Renteria, and requires the communications

to investigate and present that affirmative defense.

Secondarily, or alternatively, he seeks to prepare to impeach the

character of the anticipated main prosecution witness against

him — the victim, Renteria — if, as expected, Renteria is called

by the prosecution at trial.

Defendant asserts that to the extent the SCA allows

Facebook to block his subpoena, the Act must be found to violate

his federal Fifth Amendment due process rights, along with his

Sixth Amendment rights of confrontation, cross-examination,

and counsel — and hence the SCA is unconstitutional as applied

to him. Defendant recognizes that in People v. Hammon (1997)

15 Cal.4th 1117, 1128, we declined to recognize such

constitutional rights to pretrial discovery of statutorily

privileged psychotherapy information. Yet, defendant contends,

we should now limit or overrule this aspect of Hammon. These

are essentially the same constitutional claims and arguments

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that were presented, but not reached, in Facebook (Hunter),

supra, 4 Cal.5th 1245.

The Court of Appeal below, observing that Facebook

(Hunter), supra, 4 Cal.5th 1245 was then pending before us,

rejected defendant’s claims (Facebook, Inc. v. Superior Court

(Touchstone) (2017) 15 Cal.App.5th 729, 739–745) and denied

him pretrial discovery (id., at pp. 745–748 [exploring optional

means by which defendant might obtain the sought

information]). In our subsequent order granting review we

directed the parties to address additional issues arising from the

briefing and the Court of Appeal’s opinion (id., at pp. 746–

748) — specifically, whether the trial court might compel

Facebook’s compliance with the underlying subpoena (or

alternatively compel Renteria to consent to disclosure by

Facebook), and whether the trial court might compel the

prosecution to issue a search warrant on behalf of the

underlying defendant.

In May 2018 we permitted the district attorney, the

prosecuting authority in the underlying criminal action, to

intervene in this proceeding. We later allowed the district

attorney to file briefs, and also permitted all parties and amici

curiae to file supplemental briefs addressing the effect, if any, of

our decision in Facebook (Hunter), supra, 4 Cal.5th 1245. That

briefing in turn spawned two additional potentially dispositive

issues: whether Facebook users expansively consent to

disclosure of all communications; and whether Facebook’s

business model removes it from coverage under the SCA.

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II. FACTS ALLEGED IN THE PETITION

FOR REVIEW — CONTRASTED WITH

THE PRELIMINARY HEARING

TESTIMONY AND RELATED EXHIBITS

Defense counsel’s recitation of the facts in the petition for

review, which is substantially identical to what defense counsel

previously told the trial court and the Court of Appeal, advanced

three key representations, as follows:

(1) “In August 2016, [defendant] drove to San Diego . . . to

visit his sister Rebecca . . . . When he arrived, he discovered that

Rebecca’s boyfriend, Jeffrey Renteria, had moved into her home.

Over the next several days, [defendant] observed odd behavior

by Renteria . . . [and] grew concerned for their safety on

August 8, 2016, when he [and Rebecca] noticed that Rebecca’s

personal firearms were missing from the home, [and] . . .

Renteria himself . . . appeared to have moved out [of the house].

[(2)] When [defendant] and Rebecca attempted to contact

Renteria over the phone about the missing firearms, Renteria

made threatening statements that he was coming to harm

[defendant] and Rebecca. [(3)] Hours later, while [defendant]

and Rebecca were home alone, Renteria burst through the front

door and lunged at them. [Defendant], armed with his personal

handgun, immediately fired, hitting Renteria three times.” (Pet.

for rev., italics added.)1





1 The petition continued: “None of the wounds were fatal.

[¶] [Defendant] set aside his weapon, called 911, and was

ultimately arrested for assault. He was compliant and

cooperative with responding officers, giving a detailed

explanation of the day’s events and efforts to defend himself and

his sister against Renteria. He was ultimately charged . . . with

. . . attempted murder, with allegations of personal use of a

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We obtained the underlying preliminary hearing

transcript and exhibits from the superior court, and without

objection we took judicial notice of those items. These materials

paint a picture different from the facts set forth by defendant in

his petition for review and related prior (and subsequent) briefs.

With regard to defendant’s first representation — that

defendant and his sister feared Renteria had taken his sister’s

guns from their home — testimony at the preliminary hearing

suggests that on the morning of the shooting Renteria had

placed Rebecca’s firearms, and some of defendant’s ammunition,

into a secure container in Rebecca’s attic. On cross-examination

of Renteria at the preliminary hearing, and on redirect

examination, Renteria repeatedly confirmed that he had hidden

the weapons in the attic. A police officer who responded to the

shooting further testified at the preliminary hearing that during

a search immediately following the shooting, those same guns

were found in Rebecca’s room: a rifle was in a locked bag that

was apparently in plain sight; a Glock handgun was in a dresser;

and two loaded magazines for the handgun were outside the

dresser. Defense counsel declined to cross-examine the officer.

This testimony appears to suggest that defendant and

Rebecca had themselves found the firearms and magazines,

placed them in her room, and hence would have had no reason

to believe at the time of the shooting that any of those items

were in Renteria’s possession. Thus, defendant’s

characterization of the facts in his presentation to the lower



firearm and inflicting great bodily injury[,] . . . expos[ing] him to

a maximum sentence of twenty-two years in State Prison.”

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8

courts and this court appears inconsistent with the evidence

submitted at the preliminary hearing.

With regard to defendant’s second factual recitation —

that Renteria had threatened that he was coming to harm

defendant and his sister — the preliminary hearing transcript

reveals Renteria testified that, after receiving increasingly

aggressive messages from Rebecca, he had responded to Rebecca

and her brother, telling them that “if you try anything, you’re

going to jail for a long time.” On cross-examination, Renteria

confirmed that he had told Rebecca and defendant that if they

were “setting [him] up for something,” then they “would be

arrested.”

With regard to defendant’s third factual recitation — that

Renteria “burst through” Rebecca’s front door and “lunged at”

defendant and Rebecca — Renteria testified at the preliminary

hearing that, soon after sundown, he told Rebecca by phone that

he would return to the house to speak with her. Renteria

testified that after unlocking and entering the home’s front door,

and immediately before he was shot, he was holding (only) a

smartphone, which he used to take two photographs of

defendant while defendant, sitting on a couch with Rebecca,

raised his gun and prepared to shoot Renteria. Those two

photos, and other related photos taken by police officers, all

introduced as exhibits at the preliminary hearing, show a

person identified as defendant, sitting back and cross-legged on

a sofa, apparently in the early and then later process of raising

his gun, while seated next to Rebecca. Defendant and Rebecca

appear to be approximately six to eight feet from the front door

where Renteria stood and took the pictures in the lighted room.

This evidence is in tension with the narrative that defense

counsel represented to all three levels of courts until very

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9

recently — that Renteria “burst though” the door, and that he

“lunged at” (and inferentially posed a deadly threat to)

defendant or his sister. Again, on cross-examination, Renteria

confirmed his testimony, emphasizing that he had his phone in

his right hand when, intending to make a video, he instead “only

hit the camera button,” and took the two pictures. Defense

counsel thereafter declined the court’s invitation to offer “[a]ny

affirmative evidence of the defense.”

In sum, the testimony and exhibits introduced at the

preliminary hearing call into question (1) defendant’s asserted

self-defense justification for obtaining access to Renteria’s

restricted posts and private messages and (2) defendant’s

contention that his need for access to such communications is

particularly weighty and overcomes any competing privacy

interests of victim and social media user Renteria. Although

this is, to be sure, merely preliminary hearing evidence, it

nevertheless constitutes relevant material that could properly

be considered by a trial court that, having been presented with

an assertedly viable claim of self-defense, is required to rule on

a motion to quash a subpoena seeking restricted and private

social media communications.

III. SUBSEQUENT PROCEDURE: THE

PRESERVATION ORDER; THE SEALED

DECLARATIONS AND EXHIBITS OPPOSING

THE MOTION TO QUASH; UNSEALING OF THE

DECLARATIONS AND EXHIBITS; AND

REQUEST FOR SUPPLEMENTAL BRIEFING

Five months after the preliminary hearing described

above, defendant sought, before a different judge, the

underlying subpoena at issue in this litigation. He supported

his demand for all of Renteria’s Facebook communications

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(including restricted posts and private messages), and a related

request that Facebook preserve all such communications, by

offering a sealed declaration describing and quoting certain

public Facebook posts made by Renteria after the shooting that,

defendant asserted, revealed Renteria’s violent general

musings.2

The trial judge ordered Facebook to comply with the

subpoena or appear in court to address any objection to it and to

preserve the account and related stored communications.

Facebook preserved Renteria’s account as directed, and

then moved to quash the subpoena. Defendant’s publicly-filed

brief opposing the motion to quash recited the familiar trilogy

noted earlier: (1) on the day of the shootings defendant “noticed

that Rebecca’s personal guns and ammunition were missing

from the apartment”; (2) upon contacting Renteria about this,

he “made threatening statements to harm [defendant] and

Rebecca,” causing them to be “concerned, alarmed, and afraid”;

and (3) immediately before the shootings, “Renteria burst

through the front door and charged at them.”



2 The sealed declaration added: “It is unknown whether

additional relevant posts have been made to . . . Renteria’s

[Facebook] page that are not visible to the public, or whether

additional relevant messages have been sent through the

Facebook messaging system that have not been disclosed to

defense counsel. . . . Through this subpoena, defense counsel

seeks to preserve and obtain the stored contents of . . . Renteria’s

personal Facebook page; these records are relevant, material,

exculpatory, and reflect upon the character and propensity for

violence of the prosecution’s key witness.” This initial sealed

declaration did not attach the described public posts or any

document supporting the declaration’s other statements.

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Defendant argued in his brief opposing the motion to

quash that he had established the requisite “plausible

justification” (see, e.g., City of Alhambra v. Superior Court

(1988) 205 Cal.App.3d 1118, 1134 (Alhambra)) for acquiring any

restricted posts and private messages, and that the motion to

quash should be denied. In support, defendant invited the trial

judge to “review . . . the specific plausible justifications

establishing [defendant’s] right to compel the disclosure of

documents” set out in a second and also sealed declaration in

opposition to the motion to quash filed that date, April 21, 2017,

simultaneously with the opposition brief.3



A redacted version of the key April 21 declaration, along

with supporting redacted exhibits, was made available to the

other interested parties (and was subsequently included in

Facebook’s Appendix supporting its writ petition), employing

blackout to mask all descriptions of, and quotes from, the public

posts and other documents referred to in counsel’s declaration

opposing the motion to quash. Defense counsel asserted: “Based

on the foregoing recitation of facts and beliefs, the sought

content from [the] account is relevant because (1) it may contain

additional information that is inconsistent with the information

previously provided by . . . Renteria to law enforcement and the

prosecution as it related to this case, (2) it may contain



3 Trial court documents reflect that, at defense counsel’s

request, the trial judge permitted that declaration to be filed

under seal. In so requesting, counsel asserted that the

declaration was “privileged” within the meaning of the federal

Constitution, constituted protectable “work product, and [was]

confidential [with respect] to a percipient witness (Jeffery

Renteria)” — and that “[t]he redacted declarations [had been]

narrowly tailored in order to protect . . . [these] rights, and

permit interested parties” to respond substantively.

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additional information that demonstrates a motivation or

character for dishonesty in this matter, (3) it may contain

additional information that demonstrates a character for

violence that is relevant to the self-defense that will be asserted

by defense counsel at trial, and [(4)] it may contain additional

information that provides exonerating, exculpatory evidence for

[defendant].” And this, counsel asserted, established a plausible

justification for disclosure via the underlying subpoena.

The unredacted version of the April 21 sealed declaration

and related exhibits was made available to the trial court.

Those documents also were subsequently called up by the Court

of Appeal, and thereafter we obtained them from the appellate

court. After reviewing those documents and considering that

material in conjunction with the earlier-described preliminary

hearing transcript and exhibits, we advised the parties under

California Rules of Court, rule 8.46(f)(3), that we contemplated

unsealing the declaration and related exhibits. We gave the

parties an opportunity to comment and, receiving no objection,

we unsealed the documents.

4



4 Our order specified that “[a]s to the parties,” we unsealed

“the entirety of the April 21, 2017 declaration and all related

exhibits, which in turn quote from and present copies of public

social media posts and conditionally confidential probation

reports. (Cal. Rules of Court, rule 8.46(f)(3).)” We also specified:

“As to all others, the passages of the declaration and related

exhibits that quote from and present copies of the public social

media posts are unsealed; but the passages of the declaration

and related exhibit that quote from and present copies of the

probation reports are and remain sealed.”

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IV. RELEVANT LAW CONCERNING A

MOTION TO QUASH A CRIMINAL

SUBPOENA DUCES TECUM

At this point it is useful to describe the relevant statutes

and case law relating to criminal subpoenas. Under Penal Code

section 1326, subdivision (a), various officials or persons —

including defense counsel, and any judge of the superior court

— may issue a criminal subpoena duces tecum, and, unlike civil

subpoenas, there is no statutory requirement of a “ ‘good cause’ ”

affidavit before such a subpoena may be issued. (Pitchess v.

Superior Court (1974) 11 Cal.3d 531, 535 (Pitchess); City of

Woodlake v. Tulare County Grand Jury (2011) 197 Cal.App.4th

1293, 1301 [no requirement of a “good cause affidavit” “[i]n

criminal matters”].) It is important to note, however, that such

a criminal subpoena does not command, or even allow, the

recipient to provide materials directly to the requesting party.

Instead, under subdivision (c) of section 1326, the sought

materials must be given to the superior court for its in camera

review so that it may “determine whether or not the [requesting

party] is entitled to receive the documents.” (Pen. Code, § 1326,

subd. (c); see also People v. Blair (1979) 25 Cal.3d 640, 651 [such

materials cannot legally be given directly to the requesting

party].)

Although no substantial showing is required to issue a

criminal subpoena duces tecum, as explained below, in order to

defend such a subpoena against a motion to quash, the

subpoenaing party must at that point establish good cause to

acquire the subpoenaed records. In other words, as we have

observed, at the motion to quash stage the defendant must show

“some cause for discovery other than ‘a mere desire for the

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benefit of all information.’ ” (Pitchess, supra, 11 Cal.3d at

p. 537.)

How should a trial court assess good cause to enforce a

subpoena duces tecum in the face of a motion to quash? A

helpful decision by Justice Croskey, filed more than three

decades ago, lists seven factors that “[t]he trial court . . . must

consider and balance” when “deciding whether the defendant

shall be permitted to obtain discovery of the requested material.”

(Alhambra, supra, 205 Cal.App.3d 1118, 1134, italics added.)5



In turn, those seven factors are helpfully set forth, along with

citations to some of the cases concerning discussion of the issue

we face in this case — that is, the enforcement of a criminal

subpoena duces tecum issued to a third party — in a leading

criminal discovery treatise, Hoffstadt, California Criminal

Discovery (5th ed. 2015) § 13.03, pages 390–391 (Hoffstadt on

Criminal Discovery). Most recently, the appellate court in

Facebook v. Superior Court (Hunter) (2020) 46 Cal.App.5th 109,



5

In Alhambra, the defendant, who was charged with

capital murder, sought (1) by judicial subpoena, police reports

relating to other ostensibly similar homicides; and

subsequently, (2) pretrial discovery from the prosecution, again

concerning similar police reports relating to other ostensibly

similar homicides. The Court of Appeal determined that the

judicial subpoena had been improperly issued (by a pretrial

judicial officer instead of the trial judge) and hence should have

been quashed; accordingly, the appellate court vacated the order

denying the motion to quash. (205 Cal.App.3d at pp. 1127–1129,

1136–1137.) Regarding the related discovery request, the court

rejected the prosecution’s objections to compliance and affirmed

the propriety of that requested discovery. (Id., at pp. 1129–1136,

1137.) In the course of resolving the defendant’s discovery

request, the Court of Appeal proceeded to review and apply

seven “well established . . . principles” (id., at p. 1132), which it

eventually summarized on page 1134.

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119–121 (review granted June 10, 2020, S260846; Facebook

(Hunter) II) applied these factors in the context of evaluating the

same criminal defense subpoena that we addressed in Facebook

(Hunter), supra, 4 Cal.4th 1245.

A. The Alhambra factors

We list the seven factors that should be considered by a

trial court in considering whether good cause has been shown to

enforce a subpoena that has been challenged by a motion to

quash. In the process, we include additional relevant case

citations to those set forth in Alhambra and Hoffstadt on

Criminal Discovery:

(1) Has the defendant carried his burden of showing a

“ ‘plausible justification’ ” for acquiring documents from a third

party (Kling v. Superior Court of Ventura County (2010)

50 Cal.4th 1068, 1075 (Kling); Hill v. Superior Court (1974)

10 Cal.3d 812, 817–818 (Hill) [discovery context]; Joe Z. v.

Superior Court (1970) 3 Cal.3d 797, 804 (Joe Z.) [discovery

context]; Ballard v. Superior Court (1966) 64 Cal.2d 159,

167 (Ballard) [discovery context]; see also, e.g., Facebook

(Hunter) II, supra, 46 Cal.App.5th at p. 119, rev. granted;

Alhambra, supra, 205 Cal.App.3d at pp. 1124, 1128, 1131–1136

[discovery context]; Lemelle v. Superior Court (1978)

77 Cal.App.3d 148, 162–164 (Lemelle) [discovery context];

Pacific Lighting Leasing Co. v. Superior Court (1976)

60 Cal.App.3d 552, 566–567 (Pacific Lighting); In re Valerie E.

(1975) 50 Cal.App.3d 213, 218 [discovery context]) by presenting

specific facts demonstrating that the subpoenaed documents are

admissible or might lead to admissible evidence that will

reasonably “ ‘assist [the defendant] in preparing his defense’ ”?

(People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305,

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1318 (Barrett); Alhambra, supra, 205 Cal.App.3d 1118, 1133–

1134 [discovery context].) Or does the subpoena amount to an

impermissible “ ‘fishing expedition’ ”? (Pitchess, supra,

11 Cal.3d at p. 538; Barrett, supra, 80 Cal.App.4th at p. 1320,

fn. 7.)6



(2) Is the sought material adequately described and not

overly broad? (People v. Serrata (1976) 62 Cal.App.3d 9,

15 (Serrata); Alhambra, supra, 205 Cal.App.3d at p. 1134 &



6 The decision in Alhambra, supra, 205 Cal.App.3d at page

1134, lists plausible justification as the last of its seven factors

— but we agree with Justice Hoffstadt’s treatise that this

consideration should be given prominence and listed first.

We also note that although most decisions phrase this

factor as “plausible justification,” in Kling, supra, 50 Cal.4th at

page 1075, we referred to “ ‘a plausible justification or a good

cause showing of need,’ ” quoting the lead opinion in Alford v.

Superior Court (2003) 29 Cal.4th 1033, 1045 (Alford), which

used that phrasing. Alford in turn cited to Barrett, supra,

80 Cal.App.4th at pages 1320–1321, which, in footnote 7,

employed the disjunctive phrasing. Earlier, the appellate

court’s decision in Hinojosa v. Superior Court (1976)

55 Cal.App.3d 692, 695, also employed the disjunctive phrasing,

while citing to our own decision in Hill, supra, 10 Cal.3d at page

817, which, like our earlier decisions in Ballard, supra,

64 Cal.2d at page 167, and Joe Z., supra, 3 Cal.3d at page 804,

spoke only of “plausible justification.”

On reflection, we believe that Justice Hoffstadt’s phrasing,

reflecting that of most other cases (see, e.g., those cited in the

text immediately above), is correct. The plausible justification

consideration is but one (albeit the most significant) of multiple

factors that, together, reflect a global inquiry into whether there

is good cause for a criminal subpoena. It is included within the

overall good-cause inquiry and is not an alternative to that

inquiry. Accordingly, we decline to employ the disjunctive

phrasing used in Kling, Alford, Barrett, and Hinojosa.

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fn. 16 [discovery context]; see also Lemelle, supra, 77 Cal.App.3d

148, 165, and cases cited [discovery context].)

(3) Is the material “reasonably available to the . . . entity

from which it is sought (and not readily available to the

defendant from other sources)”? (Alhambra, supra,

205 Cal.App.3d at p. 1134, italics added [discovery context]; see

also Facebook (Hunter), supra, 4 Cal.5th at p. 1290 [noting

prospect that “the proponents can obtain the same information

by other means”] and id., at p. 1291 [suggesting that the trial

court on remand consider alternative mechanisms]; Hill, supra,

10 Cal.3d 812, 817 [posing whether the defendant “cannot

readily obtain the [discovery] information through his own

efforts”]; Facebook (Hunter) II, supra, 46 Cal.App.5th at

pp. 120–121, rev. granted [considering various alternative

sources for the subpoenaed information]; People v. Von Villas

(1992) 10 Cal.App.4th 201, 228–236 (Von Villas) [concluding, in

light of factors set out in Delaney v. Superior Court (1990)

50 Cal.3d 785, that the trial court properly granted a freelance

newsperson’s motion to quash a subpoena duces tecum on the

ground that there existed an alternative source for the

requested information7

].)



7

In Delaney, supra, 50 Cal.3d 785, we held that when a

criminal defendant who seeks “unpublished information”

protected by the newsperson’s shield law (Cal. Const., art. I, § 2,

subd. (b); Evid. Code, § 1070) subpoenas a reporter and

establishes “a reasonable possibility the [sought] information

will materially assist his defense” (50 Cal.3d at p. 809, italics

omitted), the court must consider and balance various factors,

including whether there is an “alternative source” for the

information sought. Moreover, in considering whether to

impose a “universal and inflexible” alternative source

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(4) Would production of the requested materials violate a

third party’s “confidentiality or privacy rights” or intrude upon

“any protected governmental interest”? (Alhambra, supra,

205 Cal.App.3d at p. 1134 [discovery context]; Facebook

(Hunter) II, supra, 46 Cal.App.5th at p. 121, rev. granted [noting

a social media user’s “ ‘privacy interests’ ” in subpoenaed

material]; Barrett, supra, 80 Cal.App.4th at p. 1316 [noting

governmental interest in preventing disclosure of “ ‘official

information’ ” as to which there is a necessity of preserving

confidentiality]; Millaud v. Superior Court (1986)

182 Cal.App.3d 471, 475 [subpoena must not constitute “an

unreasonable search and seizure as to the third party”]; Pacific

Lighting, supra, 60 Cal.App.3d 552, 567 [“protection of the

witness’s constitutional rights requires that the ‘ “plausible

justification” for inspection’ [citation] be so substantiated as to

make the seizure constitutionally reasonable”]; see also Kling,

supra, 50 Cal.4th at p. 1078 [noting that the People have an

interest in ensuring that evidentiary privileges are not

sacrificed merely because a subpoena recipient lacks interest to

object] & p. 1080 [noting crime victims’ rights under Marsy’s

Law, Cal. Const., art. I, § 28, subd. (b)(4), to prevent disclosure

of confidential information to a defendant]; Alford, supra,

29 Cal.4th 1033, 1038–1039 [describing law enforcement

officers’ privileges and procedures relating to third-party

discovery concerning officer records]; Hammon, supra,

15 Cal.4th 1117, 1127 [noting a patient’s statutory privilege and

constitutional right of privacy]; Delaney, supra, 50 Cal.3d 785,



requirement in that setting, the trial court must consider “the

type of information being sought . . . , the quality of the

alternative source, and the practicality of obtaining the

information from the alternative source.” (Id., at pp. 812–813.)

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19

798–816 [construing scope of the state constitutional and

statutory newsperson’s shield law in the context of a criminal

defense subpoena].)

(5) Is defendant’s request timely? (Hill, supra, 10 Cal.3d

812, 821 [discovery context]; People v. Cooper (1960) 53 Cal.2d

755, 771 [discovery context]; Alhambra, supra, 205 Cal.App.3d

1118, 1134 [discovery context].) Or, alternatively, is the request

premature? (See People v. Lopez (1963) 60 Cal.2d 223, 247

[“[u]nder certain circumstances, delayed disclosure [via

discovery] may well be appropriate”].)

(6) Would the “time required to produce the requested

information . . . necessitate an unreasonable delay of

defendant’s trial”? (Alhambra, supra, 205 Cal.App.3d at p. 1134

& fn. 17 [discovery context]; see also Kling, supra, 50 Cal.4th at

p. 1087 [noting the People’s right to a speedy trial].)

(7) Would “production of the records containing the

requested information . . . place an unreasonable burden on the

[third party]”? (Alhambra, supra, 205 Cal.App.3d at p. 1134

[discovery context]; see also Facebook (Hunter), supra, 4 Cal.5th

at pp. 1289–1290 [regarding asserted burdens on a social media

provider]; Serrata, supra, 62 Cal.App.3d 9, 15; cf. People v.

Kaurish (1990) 52 Cal.3d 648, 686 [criminal discovery may be

denied if “the burdens placed on government and on third

parties substantially outweigh the demonstrated need”].)

For convenience, we will refer to these seven

considerations as the “Alhambra factors.”

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B. Applying the Alhambra Factors — With

Emphasis on the Plausible Justification and

Confidentiality/Constitutional Rights

Considerations

We will review selected prior decisions cited above in order

to illustrate key underlying principles, with emphasis on the

plausible justification and confidentiality/constitutional rights

considerations, which are especially pertinent to the present

litigation.

1. The plausible justification factor

a. Ballard

We first articulated the plausible justification

consideration in Ballard, supra, 64 Cal.2d 159. There the

defendant, a doctor, stood charged with drugging and raping his

patient. The prosecution, with the cooperation of the victim,

made recordings of telephone conversations in which the

defendant incriminated himself. The defendant was granted

discovery, and the prosecution also agreed to provide defense

counsel with the names and addresses and the statements of

witnesses that would be called at trial. But, in addition, the

defendant sought to discover the names and addresses of all

persons interviewed by the police regarding the charge. (Id., at

p. 166.)

We found the trial court properly denied the blanket

request for information beyond that already provided to the

defendant. We explained that “ ‘[a]lthough the defendant does

not have to show, and indeed may be unable to show, that the

evidence which he seeks to have produced would be admissible

at the trial [citations], he does have to show some better cause for

inspection than a mere desire for the benefit of all information

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21

which has been obtained by the People in their investigation of

the crime.’ ” (Ballard, supra, 64 Cal.2d at p. 167, italics added.)

We elaborated: “A defendant’s motion for discovery must

. . . describe the requested information with at least some degree

of specificity and must be sustained by plausible justification.”

(Ballard, supra, 64 Cal.2d at p. 167, italics added.) We

immediately followed on that same page by quoting a passage

from a then-recent law review article by Chief Justice Traynor,

which, although not employing the italicized phrase, states: “ ‘A

showing [. . .] that the defendant cannot readily obtain the

information through his own efforts will ordinarily entitle him

to pretrial knowledge of any unprivileged evidence, or

information that might lead to the discovery of evidence, if it

appears reasonable that such knowledge will assist him in

preparing his defense. . . .’ (Traynor, Ground Lost and Found in

Criminal Discovery (1964) 39 N.Y.U. L.Rev. 228, 244; italics

added.)” (Ballard at p. 167.)

We then proceeded to apply and give meaning to the

“plausible justification” standard, while determining that “[i]n

the instant case petitioner has not met these requirements.”

(Ballard, supra, 64 Cal.2d at p. 167.) We first observed that the

defendant had failed to carry his burden of explaining to the

trial court his reasons for procuring the names and addresses of

those persons whom the prosecution does not intend to call as

witnesses. (Id., at pp. 167–168.) In reaching this conclusion, we

addressed the defendant’s “recently advanced ground for such

discovery.” (Id., at p. 168.) We noted that the defendant claimed

“he needs the names of these persons in order to determine

‘whether or not the accusatory stage had been reached’ ” when

“ ‘the complained-of tape recordings were made.’ ” (Ibid.)

“According to [the defendant], if that stage had been reached,

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the failure of the police to advise him of his rights to counsel and

to remain silent renders any evidence of his recorded statements

inadmissible” under case law construing those constitutional

rights. (Ibid.) But we rejected “such justification for discovery”

because, we explained, the defendant “was not in custody at the

time he gave such statements” and hence “the accusatory stage

could not have been reached.” (Ibid.) After undertaking an

extended analysis of the defendant’s right-to-counsel and rightto-remain silent claims underlying his asserted “plausible

justification” for acquiring the sought information (id., at

pp. 167–170), we concluded that because the defendant “was

clearly not in custody at the time he uttered the incriminating

statements to the victim, he cannot successfully challenge the

admissibility of those statements on the basis of [the cited case

law authority].” (Id., at p. 170.) Consequently, we held, the

defendant’s invocation of possible issues concerning his rights to

counsel and to remain silent did not plausibly “justify discovery

in the instant case.” (Ibid.)

As this recitation shows, in our first decision articulating

the plausible justification standard we measured the

defendant’s stated justification for acquiring the sought

information against the legal claims (in that case, asserted

violations of the rights to counsel and to remain silent) pursuant

to which the defendant urged the information would be relevant.

In resolving that plausible justification inquiry we considered

the facts as then known, determined the underlying legal claims

to be inapplicable on those facts, and hence found no plausible

justification for acquiring the sought information to support

such a legal claim. An analogous inquiry in the present case

concerning defendant’s stated primary ground for acquiring and

inspecting the sought information — that is, to support an

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23

assertion of self-defense — calls for an examination of the facts

as alleged in the briefs and also as reflected in the preliminary

hearing transcript described earlier, in order to assess whether

a claim of self-defense is sufficiently viable to warrant the

intrusion that would occur if the sought communications were

required to be disclosed.

b. Hill

As noted earlier, defendant in the present case asserts two

bases for acquiring the sought information. In addition to his

primary justification (to help establish a claim of self-defense

against Renteria), he also advances a secondary (or, if the

primary basis fails, an alternative) justification — to impeach

the prosecution’s anticipated witness, Renteria, by highlighting

his character for untruthfulness and violence. In this regard,

Hill, supra, 10 Cal.3d 812, which we decided eight years after

Ballard, is enlightening. As explained below, in Hill we found

that the defendant had indeed shown plausible justification to

acquire such impeachment evidence — but that he had not

established justification under other theories.

The defendant in Hill, charged with attempted burglary,

sought to discover (1) any public records of felony convictions

that might exist regarding the prosecution’s prospective key

witness against him — in order to impeach that witness; and

(2) any general arrest and detention records that might exist

regarding the prosecution’s prospective key witness against him

— in order to argue that the prosecution witness, who had

reported the alleged crime to the police, in fact committed that

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underlying crime.8

The trial court denied both aspects of

discovery on the ground that the defendant had not shown that

any such records existed concerning the witness. (Id., at p. 816.)

We first addressed the request for records of felony

convictions, in order to impeach. We observed that “ ‘[i]n

criminal cases, the trial court retains wide discretion to protect

against the disclosure of information which might unduly

hamper the prosecution or violate some other legitimate

governmental interest.’ ” (Hill, supra, 10 Cal.3d at p. 817.)

Then we highlighted the plausible justification factor, as first

articulated in Ballard, and we quoted again from the same

passage in Chief Justice Traynor’s article in the course of

explaining that trial courts have “discretion to deny discovery in

the absence of a showing which specifies the material sought and

furnishes a ‘plausible justification’ for inspection.” (Ibid., italics

added.)

We found that the defendant had adequately described the

sought felony conviction records, and we acknowledged that the

evidence code allows for such felony records to impeach a

witness’s credibility. (Hill, supra, 10 Cal.3d at p. 817.) We

determined that the defendant could not “ ‘ “readily obtain the

information through his own efforts” ’ ” (ibid.; see also id., at

pp. 817–819), and then we turned to the justification for



8 The motion for discovery asserted that such records, if

they exist, “may show that [the witness] has a bias or motive to

lie in the current action.” Moreover, the defendant asserted,

“[The witness] may have prior arrests . . . for burglary. These

incidents may be similar to the current offense” and could

demonstrate that the witness “may be the actual perpetrator of

the offense for which [the defendant] is now charged, thus giving

him a motive to lie.” (Hill, supra, 10 Cal.3d at p. 815.)

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acquiring and inspecting any such felony conviction records. We

noted that the subject of the records request “was an eyewitness

to the felony charged,” he was evidently “the only eyewitness

other than the persons he claimed perpetrated it,” and “the

corroboration of his report was not strong.” (Id., at p. 819, italics

omitted.) Echoing Chief Justice Traynor’s phrasing first quoted

in Ballard, we observed: “ ‘ “[I]t appears reasonable that such

information will assist [the defendant] in preparing his

defense.” ’ ” (Id., at p. 817.) We concluded, “[m]anifestly it

would be of help in preparing the defense to obtain information

regarding any prior felony convictions of [the key prosecution

witness], whose credibility was likely to be critical to the

outcome of the trial.” (Id., at p. 819.) Considering and balancing

these factors, we determined that the defendant had established

good cause for the proposed acquisition and inspection

concerning impeachment of the prospective prosecution witness.

(Id., at p. 819.)

9



We then turned to the defendant’s additional request for

access to and inspection of any “arrest and detention” records,

which as noted earlier the defendant sought in order to probe

whether the prospective witness, and not the defendant,

committed the charged attempted burglary. (Hill, supra,

10 Cal.3d at p. 822.) We acknowledged that the prospective



9 We were careful to stress, however, that our conclusion

was based on a consideration of all of the relevant factors — and

we pointedly cautioned that a finding of good cause should not

flow automatically “in every case in which a defendant charged

with a felony seeks discovery of any felony convictions in any

‘rap sheet’ of prosecution witnesses.” (Hill, supra, 10 Cal.3d at

p. 819.) Instead, we clarified, discretion remains with the trial

judge to determine, based on all the relevant factors, whether to

grant such discovery. (Id., at p. 820.)

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26

witness’s “ ‘rap sheet,’ if it exists, might contain information

regarding arrests or detentions for prior burglaries or attempted

burglaries, and such information conceivably might lead to the

discovery of evidence of prior offenses by [the prospective

witness] having a distinctive modus operandi common to both

the prior offenses and the offense with which [the defendant] is

charged.” (Ibid.) But, we held, “[e]ven if it be assumed that such

evidence would be admissible as tending to show that [the

prospective witness] committed the instant offense, a matter

that might affect his credibility by showing he had a motive to

lie, it does not follow that [the trial court] erred in denying

discovery of the arrest and detention records, if any.” (Ibid.) We

explained: “In view of the minimal showing of the worth of the

information sought and the fact that requiring discovery on the

basis of such a showing could deter eyewitnesses from reporting

crimes, we are satisfied that [the trial court] did not abuse its

discretion in denying discovery of those records, if they exist.”

(Ibid., italics added.)

10





10 We elaborated: “Before ruling, [the trial court] inquired

whether there were any facts in [defense counsel’s] declaration

indicating that [the prospective witness] ‘may have been

involved’ other than his claiming to have been an eyewitness,

and [defense counsel] replied, ‘No . . . .’ [Defense counsel] also

advised the court that [the prospective witness] was the one who

‘initially called the police’ apparently regarding the crime

charged against [the defendant]. Even if [the prospective

witness] committed prior offenses having a distinctive modus

operandi common to both the prior offenses and the offense

charged, that fact, together with his calling the police and

claiming to have been an eyewitness to the offense charged

would not, without more, warrant a reasonable belief that [the

prospective witness] committed that offense and therefore had

an interest in the case which might affect his credibility. Those

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27

As this recitation from Hill again shows, each legal claim

that a defendant advances to justify acquiring and inspecting

sought information must be scrutinized and assessed regarding

its validity and strength. In Hill, the defendant’s request to

acquire and inspect any existing public records of felony

convictions in order to facilitate proposed impeachment of the

prospective witness was, under the circumstances, supported by

plausible justification because: it was adequately described; the

prospective (and sole) witness’s credibility was likely to be

critical to the outcome, that person was particularly subject to

impeachment, and the information sought was relevant to that

impeachment; and it reasonably appeared that such information

would assist in preparation of the defense. But the defendant

did not meet the same plausible justification test concerning his

effort to acquire and inspect any existing, and even more

sensitive, records concerning mere arrests or detentions, which

he sought in order to attempt to shift blame from himself to the

prospective prosecution witness. As noted, we found only a

“minimal showing of the worth of” that information, and

expressed concern that requiring discovery of such sensitive

information (contrasted with disclosure of public records of



facts at best would raise only a suspicion that [the prospective

witness] might have committed the instant offense. And in the

words of [the trial] court, ‘it seems . . . that what [[defense

counsel] is] suggesting [i.e., allowing discovery of [the witness’s]

arrest and detention records, if any] would have an awesome

effect on people reporting crime.’ ” (Hill, supra, 10 Cal.3d at

pp. 822–823.) At the same time, and of potential significance to

the present case, we suggested that such discovery might be

proper if it related to a valid claim of self-defense, and if a jury

could reasonably determine from the sought information, along

with any other proffered evidence, that the defendant had been

acting in self-defense. (Id., at p. 823.)

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28

actual felony convictions) based on such an insubstantial

showing could have the undesirable effect of “deter[ring]

eyewitnesses from reporting crimes.” (Hill, supra, 10 Cal.3d at

p. 822.)

Consistent with the approach undertaken in Ballard and

Hill, in assessing the present defendant’s primary basis for

plausible justification to acquire and inspect the sought

restricted posts and private messages (to support a claim of selfdefense), an appropriate inquiry would focus on the facts as

alleged in the briefs and also as reflected in the preliminary

hearing transcript in order to assess whether a claim of selfdefense is sufficiently viable to warrant that significant

intrusion.

Likewise, in assessing the present defendant’s secondary

(and, if the self-defense-claim justification fails, alternative)

basis for plausible justification in the present case — to impeach

prospective witness Renteria — an appropriate inquiry would

consider whether such a significant intrusion is warranted and

necessary to facilitate the contemplated impeachment. The

analysis should be informed by the circumstance that defendant

has already acquired, not only Renteria’s public posts (which,

defendant asserts, contain substantial relevant information) but

also, and perhaps most importantly, Renteria’s probation

reports (see ante, fn. 5), which in turn detail his prior convictions

and contain other substantial related impeachment

information. Moreover, as explained below, when as here a

subpoena seeks restricted social media posts and private

messages, in the absence of an apparent relationship between

the underlying crime and such communications, a trial court

should examine even more closely the proffered showing of

plausible justification in support of such a privacy intrusion.

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2. A third party’s confidentiality or constitutional

rights and “protected governmental interests”

As the Court of Appeal stressed in Pacific Lighting, supra,

60 Cal.App.3d 552, when considering the enforceability of a

criminal defense subpoena duces tecum, “[t]he protection of [the

subject of a subpoena’s] right to be free from unreasonable

search and seizure constitutes a ‘legitimate governmental

interest.’ Thus, though ‘ordinarily’ a criminal defendant may be

entitled to pretrial knowledge where ‘it appears reasonable that

such knowledge will assist him in preparing his defense,’

[citation] the protection of the witness’s constitutional rights

requires that the ‘ “plausible justification” for inspection’

[citation] be so substantiated as to make the seizure

constitutionally reasonable.” (Id., at pp. 566–567.) When, as in

the present case, a litigant seeks to effectuate a significant

intrusion into privacy by compelling production of a social media

user’s restricted posts and private messages, the fourth

Alhambra factor — concerning a third party’s confidentiality or

constitutional rights and protected governmental interests —

becomes especially significant.

It is important, as an initial matter, to bear in mind the

substantial differences underlying the justifications offered in

the two cases that we have encountered to date — Facebook

(Hunter), supra, 4 Cal.5th 1245 (see also Facebook (Hunter) II,

supra, 46 Cal.App.5th 109, rev. granted)), and the present

matter.

In the earlier case, Facebook (Hunter), there was

significant evidence that the underlying shooting and resulting

homicide may have related to, and stemmed from, social media

posts — and hence the nexus, and justification for intruding into

a victim’s or witness’s social media posts (public and restricted,

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30

and/or private messages), was substantial.

11

Indeed, the Court

of Appeal, in its recent treatment of the plausible justification

factor issue in that prior case, had no difficulty finding such

justification for the proposed intrusion. (Facebook (Hunter) II,

supra, 46 Cal.App.5th at p. 119, rev. granted].)12



11 In Facebook (Hunter) the defendants sought social media

communications related to two persons: The homicide victim,

Rice; and the prosecution’s key witness, Lee. Concerning the

deceased Rice, the information was sought, not for character

impeachment, but to (1) directly challenge the prosecution

expert’s anticipated testimony that the underlying shooting was

gang-related; and also to (2) “ ‘locate exculpatory evidence’ ”

(and attempt to establish a form of self-defense, or imperfect

self-defense), in light of Rice’s public posts showing that he was

a violent person who had previously threatened the defendants

and others on social media. (Facebook (Hunter), supra, 4 Cal.5th

at p. 1256; see also id., at p. 1257.) Concerning witness Lee,

defendants sought to obtain yet more of her violence-inflected

social media posts so as to impeach her by emphasizing her

threats made to others, and to argue that her testimony against

defendants, one of whom was her former boyfriend, was

motivated by jealous rage. (Id., at p. 1257.) In addition, Lee had

been implicated by some witnesses as the driver of the car used

by defendants when the shooting occurred. (Id., at p. 1253,

fn. 4.) These facts gave the defense a more specific basis for

seeking the communications of Rice and Lee, beyond identifying

general character impeachment evidence. Under the Alhambra

framework, a trial court may take into account these kinds of

case-specific considerations in evaluating whether a defendant

has established a colorable and substantial basis for seeking

social media communications by subpoena.

12 Ultimately the Court of Appeal determined that the trial

court abused its discretion in denying Facebook’s motion to

quash by failing to properly consider and balance all of the

relevant good cause factors — “particularly options for obtaining

materials from other sources.” (Facebook (Hunter) II,

46 Cal.App.5th at p. 119, rev. granted; see also, id., at pp. 120–

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In the present case, by contrast, it is questionable whether

there is any similar substantial connection between the victim’s

social media posts and the alleged attempted murder.

Moreover, although it is always possible that material in a prior

or subsequent social media post may be relevant to something

that the defendant would like to rely upon, the requirement that

a social media user or a social media provider disclose social

media posts, even to a judge for ex parte review (see Pen. Code,

§ 1326, subd. (c)), as a predicate to possible broader disclosure,

itself constitutes a significant impingement on the social media

user’s privacy with respect to restricted posts and private

messages. Accordingly, plausible justification — which, as

noted above, must in all cases be “so substantiated as to make

the seizure constitutionally reasonable” (Pacific Lighting,

supra, 60 Cal.App.3d at p. 567) — must be subject to even closer

examination in the absence of an apparent relationship between

the alleged crime and the sought private communications. (Cf.

Hammon, supra, 15 Cal.4th at p. 1127 [courts should be

especially reluctant to facilitate pretrial disclosure of privileged

or confidential information that, as it may turn out, is

unnecessary to use or introduce at trial].) An appropriate



121.) Moreover, and significantly, the appellate court correctly

observed that the trial court also failed to “evaluate [the]

continuing need for private content after the public content [had

been] produced” by Facebook, as we had directed. (Id., at

p. 121.) In the latter regard, the court stated: “[W]e do not know

whether providers had already produced the key communication

. . . , or comparable communications, as part of their public

production. We question how the trial court could properly

balance all the good cause factors, including [the prospective

prosecution witness’s] privacy interests and the other policies

served by the Act, without any review of what had already been

produced.” (Ibid.)

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assessment of a social media user’s rights implicated by such a

subpoena would take into account the likelihood of that the

asserted connection between an underlying crime and any

sought private communications actually exists.

Finally, we note that in the present circumstances, the

California Constitution, as amended to incorporate Marsy’s

Law, calls for yet additional special inquiry. (Cal. Const., art. I,

§ 28, subds. (b)(4), (b)(5), (c).) As alluded to earlier, the subpoena

seeking Renteria’s private communications implicates these

constitutional provisions, which recognize a victim’s right to

prevent disclosure of matters “otherwise privileged or

confidential by law” (id., at subd. (b)(4)) and to refuse a discovery

request by a defendant (id., at subd. (b)(5)). Moreover,

subdivision (c)(1) of section 28 allows the prosecution to enforce

a victim’s rights under subdivision (b). We have observed that

these provisions contemplate “that the victim and the

prosecuting attorney would be aware that the defense had

subpoenaed confidential records regarding the victim from third

parties.” (Kling, supra, 50 Cal.4th 1068, 1080.) Accordingly, in

circumstances like those here it would be appropriate to inquire

whether such notice has been, or should be, provided.13



13 As recited ante, part III, the trial court ordered Facebook

to preserve the sought files and information, and Facebook

reported that it had done so. In these circumstances an

appropriate assessment of a victim’s rights under the

constitutional provision would consider whether, after such

preservation has occurred (hence presumably addressing

concerns about possible spoliation by a social media user), notice

to a victim/social media user should be provided in order to

facilitate the victim’s confidentiality and related rights.

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V. THE UNDERLYING HEARING ON THE

MOTION TO QUASH, AND THE COURT’S

RULING UPHOLDING THE SUBPOENA

TO FACEBOOK

The superior court judge who conducted the hearing on the

motion to quash (and who had not been involved in any of the

earlier proceedings in this matter) denied the motion, finding

good cause for the subpoena. Neither the reporter’s transcript

of the hearing, nor the resulting minute order, reflects that the

court expressly considered and balanced the most relevant

Alhambra factors.

Specifically, there was no express mention of, let alone

explicit assessment concerning, the primary good cause factor

— whether defendant had shown plausible justification for

acquiring crime victim Renteria’s restricted posts and private

messages. Neither did the court explicitly address the potential

overbreadth of the subpoena. Nor did the court adequately

consider defendant’s ability to obtain the material from other

sources, such as the messages’ recipients, or friends who could

view Renteria’s restricted posts and private messages. The

court did consider, and evidently credited, defense counsel’s

assertion that Renteria would not be a reliable source for

handing over the communications. Yet nothing in the record

suggests that the court assessed, or balanced, any

confidentiality or constitutional interests or privileges that

Renteria might have, including possible rights under Marsy’s

law, in securing notice and avoiding cooperation with defense

counsel and disclosure of his restricted posts and private

messages.

The absence of such a record of consideration in the

present case is somewhat understandable. At the time of the

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34

hearing, Alhambra’s useful seven-factor balancing summary,

although having been set forth nearly 30 years prior, had gone

uncited except for in the 2015 edition of Justice Hoffstadt’s

California Criminal Discovery treatise in a passage addressing

a trial court’s in camera review of produced documents. (See

Hoffstadt on Criminal Discovery, supra, at pp. 390–391.)

Nevertheless, as shown above, a number of longestablished decisions have discussed, quite extensively, several

of these factors, including the two that deserve special attention

in the present circumstances — plausible justification, and

confidentiality or constitutional interests that a person in

Renteria’s position might have. In other words, as these and

related cases demonstrate, the Alhambra framework is built

upon a firm foundation, and the Alhambra decision itself is

innovative only in the sense that it collected these principles in

a handy list.

As recently acknowledged by the Court of Appeal in

Facebook (Hunter) II, supra, 46 Cal.App.5th 109, 119–121 (rev.

granted), the seven Alhambra factors are relevant, and properly

should be considered by a trial judge, when ruling on a motion

to quash a subpoena directed at a third party. It is especially at

that point in the subpoena process that the judicial officer should

assess and balance, not only the important plausible

justification factor, but also all of the other factors — including

the adequacy of the description/overbreadth, availability of the

sought material from other sources, privacy/confidentiality and

constitutional concerns, timeliness, potential for delay of trial,

and asserted undue burden on a producing third party. The trial

court did not do so here.

FACEBOOK, INC. v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

35

VI. PROBLEMS RAISED BY

PROCEEDING EX PARTE AND UNDER

SEAL — AND RELATED “BEST

PRACTICES” CONSIDERATIONS

In addition to failing to clearly apply the Alhambra

factors, the trial court also chose to proceed ex parte and under

seal. We have acknowledged in cases such as Kling, supra,

50 Cal.4th 1068, that in criminal proceedings, by virtue of Penal

Code section 1326, “[t]he Legislature granted the defense special

protections” — permitting criminal defendants to make the

necessary showing of need for any sought materials outside the

presence of the prosecution, if necessary to protect defense

strategy and/or work product. (Kling, supra, 50 Cal.4th at

p. 1075.)14

At the same time, we have cautioned trial courts

against allowing sealing in this setting unless there is “ ‘a risk

of revealing privileged information’ and a showing ‘that filing

under seal is the only feasible way to protect that required

information.’ ” (Ibid.) Moreover, we explained, proceeding ex



14 See also Kling, supra, 50 Cal.4th, at page 1075 [the

defense “ ‘is not required, on pain of revealing its possible

defense strategies and work product, to provide the prosecution

with notice of its theories of relevancy of the materials

sought’ ”].) Instead, a defendant may make “ ‘an offer of proof at

an in camera [and ex parte] hearing.’ ” (Ibid.; see also id., at

pp. 1076–1077.) Nonetheless, as noted earlier, a failure to

establish good cause — amounting to a mere fishing expedition

— will lead to the granting of a motion to quash. (Id., at p. 1075;

see also Barrett, supra, 80 Cal.App.4th 1305, 1320, fn. 7.)

In this case, defendant has freely disclosed his self-defense

and impeachment strategy, both in the trial court and the Court

of Appeal, and also in this court. As he concedes, it “is no secret”

that his strategy has been and will be (1) primarily to claim selfdefense; and (2) secondarily and alternatively, to impeach the

victim’s character and portray him as violent.

FACEBOOK, INC. v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

36

parte is “generally disfavored” (id., at p. 1079) because doing so

may lead judges, uninformed by adversarial input, to incorrectly

deny a motion to quash and grant access to pretrial discovery.

(Ibid.) We elaborated on the “inherent deficiencies” of ex parte

proceedings: “ ‘ “[T]he moving party’s . . . presentation is often

abbreviated because no challenge from the [opposing party] is

anticipated at this point in the proceeding. The deficiency is

frequently crucial, as reasonably adequate factual and legal

contentions from diverse perspectives can be essential to the

court’s initial decision. . . .’ ” [Citations.] Moreover, ‘with only

the moving party present to assist in drafting the court’s order

there is a danger the order may sweep “more broadly than

necessary.” ’ ” (Ibid.) Accordingly, we explained, a trial court

should “balance the People’s right to due process and a

meaningful opportunity to effectively challenge the discovery

request against the defendant’s constitutional rights and the

need to protect defense counsel’s work product.” (Id. at p. 1079.)

A trial court has discretion to balance these “competing

interests” in determining how open proceedings concerning the

subpoena should be. (Id. at p. 1080.)

The balancing called for in circumstances such as these

can be complex and nuanced. For example, as noted, defendant

stresses his right to acquire and present all relevant evidence in

his defense, and insists he has established good cause to invade

Renteria’s privacy interests by acquiring his restricted posts and

private communications via his underlying subpoena. Yet the

district attorney asserts that victim Renteria’s constitutional

rights, including under Marsy’s Law, were violated when the

trial court ordered Facebook to preserve the information, and

then issued the subpoena, without giving the victim or the

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Opinion of the Court by Cantil-Sakauye, C. J.

37

People adequate notice and an opportunity to be heard

concerning issuance of the subpoena.

In the trial court in present case, defense counsel was

allowed to proceed ex parte and to file under seal the key

declaration and exhibits opposing the motion to quash.

Accordingly neither the district attorney nor Facebook was

permitted to learn what public posts defendant relied upon —

and neither was in a position at the hearing concerning the

motion to quash to address whether those posts support a

finding of good cause for the underlying subpoena. When a trial

court does conclude, after carefully balancing the respective

considerations, that it is necessary and appropriate to proceed

ex parte and/or under seal, and hence to forego the benefit of

normal adversarial testing, the court assumes a heightened

obligation to undertake critical and objective inquiry, keeping in

mind the interests of others not privy to the sealed materials.

Finally, we caution that even when other entities are not

excluded from full participation in the proceedings, a trial court

ruling on a motion to quash — especially one that, like this,

involves a request to access restricted social media posts and

private messages held by a third party — should bear in mind

the need to make a record that will facilitate appellate review.

We acknowledge that the trial court below was not required to

issue a written statement of decision concerning its ruling on

the motion. (See In re Marriage of Askmo (2000) 85 Cal.App.4th

1032, 1040 [Code of Civil Proc. § 632, which requires a trial court

to issue a statement of decision that explains the factual and

legal basis for its determinations, generally applies only “when

there has been a trial followed by a judgment,” and “does not

apply to an order [resolving a] motion”].) Yet because we today

articulate seven factors that courts must balance when ruling

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Opinion of the Court by Cantil-Sakauye, C. J.

38

on a motion to quash, we emphasize that courts should create a

record that facilitates meaningful appellate review.

Accordingly, a trial court should, at a minimum, articulate

orally, and have memorialized in the reporter’s transcript, its

consideration of the relevant factors.

VII. WE WILL REMAND TO THE TRIAL COURT

TO CONSIDER THE GOOD CAUSE FACTORS

WITH FULL PARTICIPATION BY ALL THREE

PARTIES, AND WE WILL DECLINE TO RESOLVE

THE CONSTITUTIONAL AND RELATED

SUBSTANTIVE ISSUES RAISED IN THE BRIEFS

Defendant insists in his most recent briefing, and at oral

argument, that the underlying subpoena is supported by good

cause, and that although its scope should be narrowed, the

subpoena is generally enforceable. After recently being

permitted to see the unsealed declaration and supporting

exhibits, Facebook and the district attorney both contend the

subpoena is not supported by good cause. The trial court, having

allowed defendant to proceed ex parte and under seal, has not

considered the input that we have obtained from the district

attorney and Facebook.

We review a ruling on a motion to quash, like other

discovery orders, for abuse of discretion. (Pitchess, supra,

11 Cal.3d at p. 535; see also Facebook (Hunter) II, supra,

46 Cal.App.5th at p. 118, rev. granted.) We conclude that the

trial court below abused its discretion when ruling on the motion

to quash by failing to apply the seven-factor Alhambra test.

Under these circumstances we find it prudent to afford the trial

court an opportunity to consider the good cause issue anew, this

time with full participation by all three parties.

FACEBOOK, INC. v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

39

Facebook nevertheless urges, and the district attorney

suggests, that we should overlook questions concerning the

enforceability of the underlying subpoena and proceed to

address and decide the various important underlying

substantive legal issues discussed in the briefs. We recognize

that the parties have undertaken substantial efforts to explore

the Fifth and Sixth Amendment issues implicated in this case,

as well as the various theories under which a proper state

subpoena might be enforced against Facebook without resolving

those constitutional issues. In light of the potential significance

of all of these issues, however, we conclude it is preferable to

reserve judgment on these questions until we can be confident

that we are dealing with an otherwise enforceable subpoena.

Accordingly, in light of questions concerning whether the

underlying subpoena is supported by good cause, we will direct

the Court of Appeal to vacate the trial court’s denial of the

motion to quash and instruct the trial court to reconsider that

motion.

VIII. WHETHER FACEBOOK IS

COVERED UNDER THE SCA

Although we will not decide the important constitutional

and related issues raised in the earlier briefs, we briefly address

Facebook’s suggestion that in Facebook (Hunter), supra,

4 Cal.5th 1245, we resolved in its favor the question of whether

it is covered and bound by the SCA.

Facebook raises this argument in response to the

assertion, jointly advanced by defendant and the district

attorney, that Facebook’s business model places it outside key

provisions of the SCA and renders it subject to an enforceable

state subpoena. The theory suggested by defendant and the

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Opinion of the Court by Cantil-Sakauye, C. J.

40

district attorney, which is premised on Facebook’s Terms of

Service15 and Data Policy,

16 is that Facebook’s business model

of mining its users’ communications content, analyzing that

content, and sharing the resulting information with third

parties to facilitate targeted advertising, precludes it from

qualifying as an entity subject to the SCA. That law, defendant

and the district attorney observe, covers only two types of

entities — (1) those that provide “electronic communication

service” (ECS) and (2) those that provide “remote computing

service” (RCS) — and the law bars such entities from divulging

to others the contents of their users’ communications.

17



Defendant and the district attorney assert that Facebook is

neither a provider of ECS nor of RCS under the provisions of the

Act.

As noted, Facebook suggests our opinion in Facebook

(Hunter) supra, 4 Cal.5th 1245, and decisions by other courts in



15 Facebook, Terms of Service (revised July 31, 2019) [as of

August 10, 2020]. All Internet citations in our opinion will be

archived by year, docket number and case name at

.

16 Facebook, Data Policy (revised April 19, 2018) [as of August 10, 2020].

17 Regarding an entity that provides ECS, see 18 U.S.C.

section 2510(15) [defining that term, as incorporated into the

SCA by id., § 2711(1)]; id., section 2702(a)(1) [barring disclosure

by an entity that provides ECS of any communication “in

electronic storage by that service”]; id., section 2510(17)(A)–(B)

[defining “electronic storage”]. Regarding an entity that

provides RCS, see id., section 2711(2) [defining that term]; id.,

section 2702(a)(2) [barring disclosure by an entity that provides

RCS of “the contents of any communication which is carried or

maintained on that service” when certain conditions apply].

FACEBOOK, INC. v. SUPERIOR COURT

Opinion of the Court by Cantil-Sakauye, C. J.

41

prior litigation, have determined that Facebook operates as a

provider of either ECS or RCS, and hence is covered by the Act.

We will not assess the underlying merits of the business model

thesis. Yet we observe that, contrary to Facebook’s view, we

have not determined that Facebook is a provider of either ECS

or RCS under the Act.

Our opinion in Facebook (Hunter) supra, 4 Cal.5th 1245,

undertook no substantive analysis concerning whether the

entities in that case (including Facebook) provide ECS or RCS

with regard to the communications there at issue. Because

(1) prior decisions had found or assumed that Facebook and

analogous social media entities provide either ECS or RCS with

regard to the type of sought posts and/or messages at issue in

those prior cases and in Facebook (Hunter), and (2) neither party

in Facebook (Hunter) contested the issue, we stated that we saw

“no reason to question [that] threshold determination.”

(4 Cal.5th at p. 1268.) Accordingly, we assumed, but did not

decide, that Facebook provided either ECS or RCS with regard

to the communications sought — and hence was covered by the

Act’s general ban on disclosure of content by any entity

providing those services. (4 Cal.5th at p. 1268 & fn. 26.) In so

proceeding, we did not consider whether, under the business

model theory subsequently proffered in this case, Facebook

provides either ECS or RCS, or neither, under the Act. That

potentially dispositive issue remains unresolved.18



18 Facebook also asserts in its briefing that “every court to

consider the issue has concluded that Facebook and other social

media providers qualify as either an ECS or an RCS provider.”

(See, e.g., State v. Johnson (Tenn. Crim. App. 2017) 538 S.W.3d

32, 68–69, and cases cited.) And yet, it appears, no court,

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Opinion of the Court by Cantil-Sakauye, C. J.

42

IX. CONCLUSION

We direct the Court of Appeal to remand this matter to the

trial court with instructions that the trial court vacate its order

denying the motion to quash and reconsider the motion, with

full participation by the parties, by assessing and balancing the

seven Alhambra factors outlined ante, part IV.

19



CANTIL-SAKAUYE, C. J.

We Concur:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.



including, most recently, two decisions relied upon by Facebook

— Facebook, Inc. v. Wint (D.C. 2019) 199 A.3d 625, and Facebook

(Hunter) II, supra, 46 Cal.App.5th 109 (rev. granted) — has

considered the issue in light of the business model theory

advanced by defendant and the district attorney.

19 On June 12, 2020 — a week before oral argument —

defendant filed a motion seeking to “augment” the record in this

writ proceeding under California Rules of Court, rule 8.340(c),

by presenting a “printout from the California Department of

Corrections” concerning Renteria. Because the proffered

document was not, as required by corresponding rule

8.155(a)(1), “filed or lodged in the case in superior court,” nor

does it constitute a “certified transcript — or agreed or settled

statement — of oral proceedings,” it is not properly subject to

augmentation under rule 8.340(c), and the motion is hereby

denied. In any event, the document’s contents are irrelevant to

our analysis and disposition in this proceeding.

1

FACEBOOK, INC. v. SUPERIOR COURT

S245203

Concurring Opinion by Chief Justice Cantil-Sakauye

As observed in the majority opinion, Lance Touchstone,

defendant in the prosecution below (defendant), and intervener

San Diego County District Attorney (the district attorney)

jointly advance a business model theory that, they contend,

places Facebook, Inc., outside the ambit of a 34-year-old federal

law, the Stored Communications Act (18 U.S.C. § 2701 et seq.;

hereafter SCA or Act).1

I write separately to explore this theory

in greater depth because, in my view, it deserves additional and

focused attention, perhaps on remand in this case or at least in

other similar future litigation.

Defendant and the district attorney focus on Facebook’s

authorization to undertake, and its practice of, mining its users’

communications content, analyzing that content, and sharing

the resulting information with third parties to facilitate

targeted advertising. They assert this business model renders

Facebook subject to a viable state subpoena duces tecum seeking

the content of user communications, including restricted social

media posts and private messages.



1 All future section citations are to title 18 of the United

States Code unless otherwise indicated.

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

2

This contention, which is grounded on Facebook’s Terms

of Service2 and Data Policy,3 posits that the mining, analyzing,



2 Facebook, Terms of Service (revised July 31, 2019) [as of

August 10, 2020]. (All Internet citations in this opinion are

archived by year, docket number, and case name at

.) These “Terms” provide:

“Instead of paying to use Facebook and the other products and

services we offer, by using the Facebook Products covered by

these Terms, you agree that we can show you ads that

businesses and organizations pay us to promote on and off the

Facebook Company Products. We use your personal data, such

as information about your activity and interests, to show you

ads that are more relevant to you. [¶] . . . . [¶] We collect and

use your personal data in order to provide the services described

above to you.” (Id., at pt. 2, How our services are funded.)

Moreover, the Terms provide: “We need certain permissions

from you to provide our services: [¶] . . . . [¶] [T]o provide our

services we need you to give us some legal permissions (known

as a ‘license’) to use this content . . . . [¶] Specifically, when you

share, post, or upload content that is covered by intellectual

property rights on or in connection with our Products, you grant

us a non-exclusive, transferable, sub-licensable, royalty-free,

and worldwide license to host, use, distribute, modify, run, copy,

publicly perform or display, translate, and create derivative

works of your content (consistent with your privacy and

application settings). This means, for example, that if you share

a photo on Facebook, you give us permission to store, copy, and

share it with others (again, consistent with your settings) such

as service providers that support our service or other Facebook

Products you use.” (Id., at pt. 3, Your Commitments to Facebook

and Our Community, pt. 3.3, The permissions you give us,

pt. 3.3.1, Permission to use content you create and share.)

3 Facebook, Data Policy (revised Apr. 19, 2018) [as of August 10, 2020].

The Data Policy describes what Facebook mines: “We collect the

content, communications and other information you provide

when you use our Products, including when you . . . message or

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

3



communicate with others. This can include information in or

about the content you provide . . . . Our systems automatically

process content and communications you and others provide to

analyze context . . . . [¶] . . . . [¶] We also receive and analyze

content, communications and information that other people

provide when they use our Products.” (Id., at pt. I, What kinds

of information do we collect?/ Things you and others do and

provide/ Information and content you provide/ Things others do

and information they provide about you.) Thereafter, Facebook’s

Data Policy explains, it employs users’ mined and analyzed

content to facilitate various services, including to “[p]rovide,

personalize, and improve our Products [¶] . . . and make

suggestions for you” by showing users “personalize[d] ads,

offers, and other sponsored content.” (Id., at pt. II, How do we

use this information?/ Provide, personalize and improve our

Products/ Ads and other sponsored content.) In that regard,

Facebook relates, it shares information about its users’ content

with “third-party partners . . . which [in turn] makes it possible

to operate our companies and provide free services to people

around the world.” (Id., at pt. III, How is this information

shared?/ Sharing with Third-Party Partners.) Facebook states

that it “do[es]n’t sell any of your information to anyone,” but

instead “[s]har[es] with,” “work[s] with,” and “provide[s]” that

information to “third-party partners.” (Ibid., italics added.)

Specifically, for some partners, it supplies “aggregated statistics

and insights that help people and businesses understand how

people are engaging with their posts . . . and other content.” (Id.

at pt. III, Partners who use our analytics services.) And for

advertisers, Facebook explains: “We provide . . . reports about

the kinds of people seeing their ads and how their ads are

performing.” (Id., at pt. III, Sharing with Third-Party Partners/

Advertisers.) At the same time, Facebook stresses: “[W]e don’t

share information that personally identifies you (information

such as your name or email address that by itself can be used to

contact you or identifies who you are) unless you give us

permission. For example, we provide general demographic and

interest information to advertisers (for example, that an ad was

seen by a woman between the ages of 25 and 34 who lives in

Madrid and likes software engineering) to help them better

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

4

and sharing activities that these provisions permit Facebook to

undertake preclude Facebook from qualifying under the SCA as

a provider that is prohibited by the Act from disclosing user

content. Accordingly, defendant and the district attorney assert,

Facebook cannot hold up the Act as a shield that protects it from

complying with a viable state subpoena seeking such user

communication content, including restricted posts and private

messages.

Facebook does not contest that it mines, analyzes, and

shares with third party advertisers information about content

found in, among other things, its users’ communications —

including restricted posts and private messages. Facebook

maintains, however, that these practices do not remove it from

the applicable provisions of the SCA.

I outline below the key statutes and summarize

defendant’s and the district attorney’s arguments, as well as

Facebook’s responses.

I. OVERVIEW OF THE BUSINESS MODEL

ARGUMENT: ASSERTION THAT FACEBOOK

DOES NOT PROVIDE “ECS” OR “RCS” — AND

HENCE IS NOT PRECLUDED BY THE SCA FROM

COMPLYING WITH A VIABLE STATE SUBPOENA

As we observed in Facebook v. Superior Court (Hunter)

(2018) 4 Cal.5th 1245, 1264–1265, the SCA covers, and prohibits

disclosure of, stored and/or electronic communications by only

two specific types of entities — (1) those that provide “electronic



understand their audience. We also confirm which Facebook

ads led you to make a purchase or take an action with an

advertiser.” (Ibid.)

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

5

communication service” (ECS), and/or (2) those that provide

“remote computing service” (RCS).4

(§ 2702(a).) If an entity

does not act as a provider of ECS or RCS with regard to a given

communication, the entity is not bound by any limitation that

the SCA places on the disclosure of that communication — and

hence the entity cannot rely upon the SCA as a shield against

enforcement of a viable subpoena seeking that communication.

Defendant and the district attorney argue that stored

communications, including restricted posts and private

messages, are subject to disclosure by Facebook pursuant to a

viable subpoena. They assert this is so because, in light of the

mining, analyzing, and sharing of licensed information about

content that is authorized by Facebook’s policies, Facebook does

not qualify as an entity that provides either ECS or RCS with

respect to the sought communications — and hence Facebook

cannot rely on the SCA provisions that bar disclosure of stored

communications.

To understand the business model argument, it is

necessary to first review the SCA’s statutory definitions of ECS

and RCS.

II. ECS AND RCS AS DEFINED BY THE SCA

ECS is defined as “any service which provides to users

thereof the ability to send or receive wire or electronic

communications.” (§ 2510(15) [incorporated into the SCA by

§ 2711(1)].) Section 2702(a)(1), directs that an “entity providing

an electronic communication service to the public shall not



4 The Act lists exceptions under which such providers may

(or in some circumstances must) disclose communications

content (§ 2702(b)–(c) but no exception applies with regard to

any restricted post or private message at issue in this case.

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

6

knowingly divulge to any person or entity the contents of a

communication while [the communication] is in electronic

storage by that service.” (Italics added.) “Electronic storage” is

defined in section 2510(17), as “(A) any temporary, intermediate

storage of a wire or electronic communication incidental to the

electronic transmission thereof; and [¶] (B) any storage of such

communication by an electronic communication service for

purposes of backup protection of such communication.” (Italics

added.)5



RCS, by contrast, is defined as “the provision to the public

of computer storage or processing services by means of an

electronic communications system.” (§ 2711(2).) Section

2702 (a)(2)’s introductory language directs that an “entity

providing remote computing service to the public shall not

knowingly divulge to any person or entity the contents of any

communication which is carried or maintained on that service”

when certain conditions are met. (Italics added.)

The next parts of section 2702(a)(2) describe the conditions

that will trigger the duty of an entity providing RCS to “not

knowingly divulge” the contents of any communication carried

or maintained by that entity. Defendant and the district

attorney do not contend that Facebook fails to satisfy the first

condition set out in subsection (a)(2)(A): the “carried or

maintained” communication must be “on behalf of, and received



5 By their terms, the two subdivisions of section 2510(17)

establish that they refer to two separate types of storage, and

past decisions have interpreted the statute to mean that

“electronic storage” can be established by meeting either the

definition in (A) or that in (B).

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

7

by means of electronic transmission from . . . a subscriber or

customer of such service.”

It is the second condition set out in section 2702(a)(2)(B)

that lies at the center of the business model argument advanced

by defendant and the district attorney. Under section

2702(a)(2)(B), the prohibition on disclosure by an entity that

provides RCS applies only if the communication is carried or

maintained on the service “solely for the purpose of providing

storage or computer processing services to such subscriber or

customer, if the provider is not authorized to access the contents

of any such communications for purposes of providing any

services other than storage or computer processing.” (Italics

added.)

This crucial passage is hardly a model of clarity. It

appears to express two related conditions in order to qualify as

a communication held by an entity that provides RCS: (1) the

user’s data must be transmitted to the provider “solely for the

purpose of providing storage or computer processing services”;

and (2) the entity must “not [be] authorized to access the

contents of any such communications for purposes of providing

any services other than storage or computer processing.”

(§ 2702(a)(2)(B); see, e.g., Robison, Note, Free at What Cost?:

Cloud Computing Privacy Under the Stored Communications

Act (2010) 98 Geo. L.J. 1195, 1213–1214 (Free at What Cost?) [so

construing the statute].) Based on this language, the author of

the cited law journal and other commentators have argued that

if the entity is “authorized to access the contents of any such

communication for purposes of providing any services other than

storage or computer processing” (§ 2702(a)(2)(B), italics

added) — that is, for the purposes of providing any services in

addition to storage or computer processing — the Act’s bar on

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

8

disclosure is inapplicable.6

In other words, these commentators

reason, such an entity would not be acting as an RCS that is, in



6 See Free at What Cost?, supra, 98 Geo. L.J. at page 1214

[“The Act’s RCS privacy protections require that ‘storage or

computer processing’ be the sole reason that a customer

transmits her data to the cloud provider” but “[w]hen data is

also shared with the cloud provider to facilitate contextual

advertising, this requirement is not satisfied”; moreover, “[t]he

Act . . . requires that the cloud provider . . . be authorized to

access the customer’s data [only] to provide the processing or

storage service” — yet “by agreeing to share her data with the

cloud provider for contextual advertising purposes, this

additional requirement is unfulfilled”]; see also Katten, Note,

Cloudy Privacy Protections: Why the Stored Communications

Act Fails to Protect the Privacy of Communications Stored in the

Cloud (2011) 13 Vand. J. Ent. & Tech. L. 617, 640, fn. omitted

(Cloudy Privacy Protections) [asserting that “when a customer

consents to a user agreement which permits the service provider

to access his data to provide targeted advertising, the user’s

emails may not be protected [under the SCA] as communications

maintained by” an ECS or RCS]; Zimmeck, The Information

Privacy Law of Web Applications and Cloud Computing (2012–

2013) 29 Santa Clara Computer & High Tech. L.J. 451, 472

(fn. omitted) [“if the service provider and the user agreed that

the provider can access the communication contents of users, for

. . . purposes of contextual advertising, such contents can be

disclosed” because such an entity is not acting as an RCS];

Fairfield & Luna, Digital Innocence (2014) 99 Cornell L.Rev.

981, 1062–1063 [observing that “Google (and many other free email providers) scan e-mails for purposes of targeted

advertising” and that resulting user information is not stored

“ ‘solely for the purpose of providing storage or computer

processing services’ ” — hence “[o]n this statutory reading” the

SCA would not apply]; Raquel, Comment, Blue Skies Ahead:

Clearing the Air for Information Privacy in the Cloud (2015)

55 Santa Clara L.Rev. 467, 495–496 (Blue Skies Ahead)

[concluding that when “customers authorize access to their data

for . . . advertising services in exchange for free access to the

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Cantil-Sakauye, C. J., concurring

9

turn, generally barred from disclosing communications

content — and hence the entity would be subject to a viable

subpoena duces tecum.

It is important to recognize that with regard to both

general directives against disclosure by an entity providing ECS

or RCS, “contents” is broadly defined by the SCA to “include[]

any information concerning the substance, purport, or meaning

of [the] communication.” (§ 2510(8).) This definition would

appear to encompass information about or relating to the

content of a communication — not just the bare or exact text of

a communication, including of any restricted post or private

message.

III. THE ACT’S ECS AND RCS

CATEGORIES SHOULD BE UPDATED OR

REPLACED BY CONGRESS

Courts and commentators have long acknowledged that,

as applied to contemporary entities, the 34-year-old SCA is

woefully outdated. Eighteen years ago the decision in Konop v.

Hawaiian Airlines (9th Cir. 2002) 302 F.3d 868, observed that

because the SCA “was written prior to the advent of the Internet

and the World Wide Web . . . , the . . . statutory framework is illsuited to address modern forms of communication,” and hence

courts “have struggled to analyze problems involving modern

technology within the confines of this statutory framework.”

Moreover, the court emphasized, “until Congress brings the

laws in line with modern technology, protection of the Internet

and websites . . . will remain a confusing and uncertain area of



cloud services,” the entity does not qualify as a provider under

the SCA and “the data will be subject to disclosure”].

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Cantil-Sakauye, C. J., concurring

10

the law.” (Konop, at p. 874.)

7 Seven years ago, a federal district

court wrote, in evident frustration: “Most courts, including this

one, would prefer that Congress update the statute to take into

account the invention of the Internet.” (Ehling v. Monmouth

Hosp. Corp. (D.N.J. 2013) 961 F.Supp.2d 659, 666, fn. 2.)

The scholarly literature is similar. For example, Professor

Orin S. Kerr has observed that the Act’s ECS/RCS dichotomy

“freez[es] into the law the understandings of computer network

use as of 1986” — and he has urged Congress to amend the SCA

to reflect current technology and conditions. (Kerr, A User’s

Guide to the Stored Communications Act, and a Legislator’s

Guide to Amending It (2004) 72 Geo.Wash. L.J. 1208, 1214

(A User’s Guide).)8

As Kerr has explained, Congress viewed



7 See also, e.g., Crispin v. Christian Audigier, Inc. (C.D.Cal.

2010) 717 F.Supp.2d 965, 971, footnote 15 (Crispin) [observing

that the “framework governing online communication is . . . old

and has not been amended to keep pace with changes in

technology”]; In the Matter of the Application of the State of N.J.

for Communications Data Warrants (2017) 448 N.J.Super. 471,

484 [“Courts have expressed frustration with the failure to

update the federal statute to keep pace with the advent of the

Internet and social media platforms”]. Accord, Anzaldua v.

Northwest Ambulance & Fire Prot. Dist. (8th Cir. 2015) 793 F.3d

822, 839, fn. 5 [“It is not always easy to square the decades-old

SCA with the current state of email technology”]; State v.

Johnson (Tenn.Crim.App. 2017) 538 S.W.3d 32, 68 [“Because

the framework created in the SCA relies entirely on 1986

computing technology, determining the precise scope of its

application to the type of social media communications at issue

. . . presents difficulties”].

8 See also, e.g., Zwillinger & Genetski, Criminal Discovery

of Internet Communications Under the Stored Communications

Act: It’s Not a Level Playing Field (2007) 97 J. Crim. L. &

Criminology 569, 597–598 [proposing the SCA be amended to

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Cantil-Sakauye, C. J., concurring

11



allow courts to order providers to disclose communications to

criminal and civil litigants under specified circumstances];

Gleicher, Comment, Neither a Customer Nor a Subscriber Be:

Regulating the Release of User Information on the World Wide

Web (2009) 118 Yale L.J. 1945, 1946 & 1954 [discussing the

“dangers posed by the Act’s continued reliance on” language

“written for 1986 technology” — and observing that just as the

sponsors of the SCA had warned that then-“existing law was

‘hopelessly out of date,’ . . . [t]oday, the Act itself suffers the

same flaw”]; Free at What Cost?, supra, 98 Geo. L.J. 1195, 1196

& 1235 [observing that “[d]espite the rapid evolution of

computer and networking technology since the SCA’s adoption,

its language has remained surprisingly static” and the “balance

that the Act struck . . . may no longer be appropriate”]; Ward,

Note, Discovering Facebook: Social Network Subpoenas and the

Stored Communications Act (2011) 24 Harv. J. Law & Tech. 563,

566, fn. omitted [“Because Congress has not updated the

statute, courts have struggled to apply the SCA in light of the

explosive growth of the World Wide Web”]; Cloudy Privacy

Protections, supra, 13 Vand. J. Ent. & Tech. L. 617, 620

[asserting the SCA “may not protect cloud-computing

technologies” and proposing that Congress amend the Act to

address that problem]; Medina, Note, The Stored

Communications Act: An Old Statute for Modern Times (2013)

63 Am.U. L.Rev. 267, 287 [“The Act’s framework made sense in

1986 when service providers served two distinct functions,” but

subsequently the SCA “has become hopelessly outdated”];

Fairfield & Luna, Digital Innocence, supra, 99 Cornell L.Rev.

981, 1054–1063, 1056 [asserting “the advance of cloud

computing” has rendered the ECS and RCS classifications

“archaic,” and those categories “largely obsolete”]; Blue Skies

Ahead, supra, 55 Santa Clara L.Rev. 467, 492, fn. omitted [the

“complicated ECS-RCS analytical framework . . . no longer

bears any technological significance today”]; Brehm, Comment,

Downloading the Latest Protection Updates: Regularly

Updating the Stored Communications Act (2014) 16 Loy. J. Pub.

Int. L. 1, 28–30 [urging creation of a commission to update the

SCA by issuing regulations to accommodate new technologies

and revise “antiquated definitions”]; Schlabach, Note, Privacy in

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Cantil-Sakauye, C. J., concurring

12

entities that provided ECS as those that afforded phone services

and rudimentary e-mail. With regard to e-mail, “it was common

for computers to copy the messages and store them temporarily

pending delivery. The copies that these providers of ‘electronic

communication service’ created and placed in temporary

‘electronic storage’ in the course of transmission, sometimes

stayed on a provider’s computer for several months.” (A User’s

Guide, at p. 1213 [citing legislative history].) By contrast, as a

general matter Congress viewed entities that provided RCS as

those that undertook “outsourcing computer tasks” — for

example, affording extra storage or data processing, both of

which were then difficult if not impossible to accomplish with

rudimentary home computers. And yet, “[r]emote computing

services raised privacy concerns because the service providers

often retained these copies of their customers’ files for long

periods of time.” (Id., at p. 1214 [citing legislative history].)

Because Congress has not acted to alter the relevant

provisions of the SCA despite the pleas of courts and

commentators that it do so, litigants and judges have no option

but to apply the Act’s outdated definitions to the evolved and

still developing technology and entities of today.



the Cloud: The Mosaic Theory and the Stored Communications

Act (2015) 67 Stan. L.Rev. 677, 695 [asserting the Act’s “dated

terminology threatens its effectiveness” and proposing

amendments]; Bianchini, Note, Always On, Always Listening:

Navigating Fourth Amendment Rights in a Smart Home (2018)

86 Geo. Wash. L.J. Arguendo 1, 19, 24–29 [asserting that

modern technology has rendered the Act’s ECS/RCS distinctions

outdated, making application of the SCA to modern stored

information unclear — and proposing amendments to the Act].

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Cantil-Sakauye, C. J., concurring

13

IV. THE PARTIES’ CONTENTIONS REGARDING

WHETHER, UNDER THE ACT, FACEBOOK

PROVIDES ECS, RCS, OR NEITHER

A. Whether Facebook Provides ECS

Defendant and the district attorney implicitly assert that,

even if Facebook does to some extent provide electronic storage

that is “temporary [and] intermediate . . . incidental to the

electronic transmission thereof” (§ 2510(17)(A)) — or “for

purposes of backup protection of [a] communication”

(§ 2510(17)(B)) — nevertheless, Facebook still falls outside

Congress’s understanding of an entity that provides ECS. They

argue that because (1) Facebook is authorized to mine, analyze,

and share with third party advertisers licensed information

about its users’ content (and actually does all these things), and

(2) Facebook stores users’ communications indefinitely, lets

users share the stored data with others, and facilitates manipulation

of the data by the user thereafter, Facebook conducts itself in ways that go far

beyond what Congress contemplated in 1986 that any ECS

would undertake. Accordingly, they argue, a court should find

that Facebook does not act as an entity that provides ECS with

regard to communications such as those sought in this case, and

hence is subject to a viable state subpoena.

Facebook, for its part, asserts that it qualifies as a

provider of ECS because communications such as those sought

in this case are either in “temporary or intermediate storage”

(§ 2510(17)(A)), or they are housed “for purposes of backup

protection” (§ 2510(17)(B)) and thus are barred from disclosure

under section 2702(a)(1). Facebook insists that whether it “has

authority to access [a] communication in connection with the

service is . . . irrelevant to whether [the communication] is in

electronic storage.”

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14

Facebook relies on a number of decisions finding or stating

that it qualifies as a provider of ECS. (Maj. opn., ante, at p. 41,

fn. 18.) But as observed in In the Matter of the Application of the

United States of America for a Search Warrant (D.Or. 2009)

665 F.Supp.2d 1210, 1214, whether an entity provides ECS, or

RCS, or neither, is a context-dependent inquiry: The

“distinction serves to define the service that is being provided at

a particular time (or as to a particular piece of electronic

communication at a particular time), rather than to define the

service provider itself.” (Italics added.)9



Consistent with this understanding, other federal

decisions have held that when an entity analogous to Facebook

(in those cases, providers of e-mail and text messages) retains a

communication beyond the initial sending and provisional backup stage, then once that message has been opened/accessed, the

entity no longer acts as a provider of ECS but rather transforms



9 Accord, Kerr, A User’s Guide, supra, 72 Geo.Wash. L.J.

1208, 1215–1216: “The classifications of ECS and RCS are

context sensitive: the key is the provider’s role with respect to a

particular copy of a particular communication, rather than the

provider’s status in the abstract. A provider can act as an RCS

with respect to some communications, an ECS with respect to

other communications, and neither an RCS nor an ECS with

respect to other communications.” See also id., at pages 1216–

1218 [asserting that e-mails in transit or that have been

delivered yet not opened, are stored by a provider of ECS;

whereas e-mails that have been opened and left on a server are

stored by a provider of RCS].

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Cantil-Sakauye, C. J., concurring

15

into a provider of RCS.

10

Under the reasoning of these cases,

the same would seem to apply concerning Facebook — in which

event its conduct should be examined under RCS, rather than

ECS standards. At least one court appears to have so held.

(Crispin, supra, 717 F.Supp.2d 965, 987 [regarding private

messages that had been opened, Facebook operates not as a

provider of ECS, but as a provider of RCS].)

Thus, whether Facebook should be found to qualify as a

provider of ECS under the SCA appears open to question.

Moreover, assuming that Facebook might qualify initially or

provisionally as an entity that provides ECS, it seems that

Facebook may also be obligated to establish its qualification as

an entity that provides RCS with respect to stored

communications sought in a viable state subpoena.

B. Whether Facebook Provides RCS

By the language and conditions established in section

2702(a)(2)(B), it appears Congress was aware that, in connection

with rendering storage and computer processing services, an



10 U.S. v. Weaver (C.D.Ill. 2009) 636 F.Supp.2d 769, 772–773,

quoting § 2703(b)(2) [relying on the language and legislative

history of the SCA to conclude that once a user opened an e-mail

message and kept that message on the user’s Hotmail account,

Microsoft maintained the message “ ‘solely for the purpose of

providing storage or computer processing services to such

subscriber or customer,’ ” ceased being a provider of ECS, and

transformed into a provider of RCS]; Flagg v. City of Detroit

(E.D.Mich. 2008) 252 F.R.D. 346, 362–363 [finding that Skytel,

an entity that provided text message services, had initially been

a provider of ECS; but after text communications had been

accessed and stored, Skytel transformed into a provider of RCS].

See generally the useful discussion of these and related cases in

Crispin, supra, 717 F.Supp.2d 965, 984–987.

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Cantil-Sakauye, C. J., concurring

16

entity that provides RCS would be expected to have some

authority to access its users’ data and communications for the

purpose of affording such storage and computer processing

services. As noted, the section bars a provider of RCS from

divulging “the content of any electronic transmission that is

carried or maintained on its service — . . . solely for the purpose

of providing storage or computer processing services to [the]

subscriber or customer, if the provider is not authorized to

access the contents of any such communications for purposes of

providing any services other than storage or computer

processing.” (§ 2702(a)(2)(B).) On the other hand, because the

subsection precludes disclosure only if the entity is not

authorized to access its users’ communications for purposes

“other than storage or computer processing,” the court in Juror

Number One v. Superior Court (2012) 206 Cal.App.4th 854, 862

reasoned in dictum: “[I]f the [entity] is authorized to access the

customer’s information for other purposes, such as to provide

targeted advertising, SCA protection may be lost.” As observed

ante, footnote 6, commentators have suggested or concluded the

same, asserting that when social media users authorize an

entity to access their data and communications in order to

facilitate targeted advertising, the entity may not, or does not,

qualify under the SCA as one that provides RCS — and thus the

entity is not barred from disclosing such content.

Consistent with these views, defendant and the district

attorney both assert that in light of Facebook’s business model

of mining, analyzing, and sharing information about its users’

communications content, Facebook cannot qualify under section

2702(a)(2)(B) as an entity that provides RCS. They argue that

by compelling its users to give it authorization (a broad and

transferable worldwide license — see ante, fn. 2) to utilize

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Cantil-Sakauye, C. J., concurring

17

information about its users’ mined and analyzed content for

sharing with third party advertisers, Facebook goes

substantially beyond the limited authorization that would be

necessary for it “solely” to provide “storage and computer

processing.” This, they assert, shows that Facebook is

“authorized to access the contents of . . . communications for

purposes of providing . . . services other than storage or computer

processing” — and demonstrates that Facebook is authorized to

act in precisely the manner the statute says it must not if it

wishes to qualify as a provider of RCS that is prohibited from

disclosing its users’ communications content. Accordingly, they

argue, Facebook cannot qualify as an entity that provides RCS

under the Act and thus cannot raise the SCA as a shield against

being forced to comply with a viable state subpoena.

Facebook responds that everything it is authorized to

do — including all mining, analyzing, and sharing of its licensed

information about its users’ communications — constitutes

“computer processing services,” and hence is contemplated by

and covered under the Act in section 2702(a)(2)(B). In other

words, Facebook maintains that the phrase “computer

processing services” should be broadly construed, and so

interpreted, Facebook’s authority to access information is not for

a purpose other than computer processing but instead is for

computer processing. Although Facebook cites a federal

decision and legislative history, along with Professor Kerr’s

article, to support its view that “computer processing services”

in section 2702(a)(2)(B) should be broadly construed, it seems

questionable whether those sources buttress Facebook’s

position. Indeed, they may suggest the opposite — that the term

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Cantil-Sakauye, C. J., concurring

18

was intended to have a narrow, rather than broad,

interpretation.11

Finally, Facebook insists, “every court to consider”

whether Facebook itself qualifies as an entity that provides RCS

(or ECS, or both) has held that it meets at least one if not both

tests. Yet, as the majority opinion observes, it appears that no

court has ever been asked to address, with regard to Facebook

itself (or, for that matter, any analogous entity), the specific

claim advanced by defendant and the district attorney here:

That by virtue of its business model (under which it mines,

analyzes, and shares licensed information about its users’

communications), and because Facebook has motivating

purposes beyond facilitating temporary storage during

transmission, or backup of its users’ communications, Facebook

falls outside Congress’s contemplation of an entity that provides

RCS or ECS. Indeed, as the majority opinion observes, ante at

page 41 and footnote 18, the issue remains unresolved.



11 See Low v. LinkedIn Corp. (N.D.Cal. 2012) 900 F.Supp.2d

1010, 1024, fn. omitted [rejecting an argument that LinkedIn,

by “disclos[ing its users’] IDs and the URLs of viewed [profile]

pages to third parties,” acted as an RCS provider, and in the

process, appearing to endorse a narrow, rather than broad, view

of the term computer “ ‘processing services’ ”]; Senate Report

No. 99-541, 2d Session, page 3 (1986) [suggesting that Congress,

in focusing on entities that provide data processing “outsourcing

functions,” contemplated a narrow understanding of “computer

processing” when it established the RCS category]; Kerr,

A User’s Guide, supra, 72 Geo.Wash. L.Rev. 1208, 1230–1231

[asserting that the key term “processing services” should be

limited and construed narrowly, to “refer to outsourcing

functions,” and not broadly, which would essentially include

every website].)

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Cantil-Sakauye, C. J., concurring

19

C. Tentative Assessment of Facebook’s Policy

Arguments

In addition to contending that the statutory language

supports its status as an entity that provides ECS or RCS,

Facebook asserts that policy considerations demonstrate it must

be found to so qualify because concluding otherwise would

(1) unduly disrupt and impair technological innovation,

(2) disappoint users’ settled privacy expectations, and

(3) frustrate its ability to protect against malware.

The first two contentions certainly should give a court

pause before holding that Facebook and similar entities fall

outside section 2702(a), and thus are not generally barred by

that provision from voluntarily disclosing their users’

communications, including restricted posts and private

messages. Nonetheless, for practical marketplace reasons, it

may be doubted that such a holding would likely lead to such

disruptions or voluntary disclosures by most internet entities,

absent legal compulsion.12



Neither does it appear likely that law enforcement actors

would attempt to compel entities to disclose users’

communications with, as Facebook asserts in its briefing, “a



12

Facebook posits that if disclosure is not prohibited by the

SCA, a “provider could choose to disclose a communication to

anyone.” Moreover, as Facebook observes, if an entity were to

do so it might cause users to “quickly lose confidence in

communications technology as their privacy rights disappear,

undermining the stated intent of Congress in enacting the SCA.”

Yet it appears that an entity that became known for disclosing

its users’ communications on its own, without legal compulsion,

would not long survive in the market — and hence would refrain

from doing so in the first place.

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

20

mere subpoena”; other laws and authority already protect

against that.13

Nor does it seem that a narrower construction of

the phrase would leave Facebook and similar entities unable to

protect against malware.14

Finally, as a matter of policy, a

holding finding Facebook to lie outside the SCA might have the

beneficial effect of spurring long-needed congressional

adjustment of the outdated Act, as repeatedly advocated by

courts and commentators. (See ante, pt. III.)



13

California’s Electronic Communications Privacy Act of

2015 (Pen. Code, § 1546 et seq.) generally requires a warrant or

comparable instrument to acquire such a communication (id.,

§ 1546.1, subd. (b)(1)–(5)), and in any event, it precludes use of a

subpoena “for the purpose of investigating or prosecuting a

criminal offense” (id., subd. (b)(4)). Moreover, federal case law

requires a search warrant, instead of a mere subpoena or court

order, before a governmental entity may obtain private

electronic communications. (U.S. v. Warshak (6th Cir. 2010) 631

F.3d 266, 288 [pertaining to e-mail communications].)

14

Facebook asserts that it and similar entities should not be

forced to “choose between the security and integrity of their

service, and the privacy of the communications maintained on

that service.” But this appears to be a questionable dichotomy.

It would seem that protection against malware and viruses, etc.,

might be viewed as reasonably necessary to ensure the safety

and integrity of any computer system, and in that sense, such

monitoring and resulting measures to counteract malware

might well be found to fall within a narrower definition of

“computer processing,” even if that same term would not broadly

encompass the sharing with third party advertisers of mined

and analyzed information about content. In any event,

Facebook or any similar entity might, presumably, revert to an

old-school pay-for-service business model, and still undertake

such services to scan and protect against malware, and viruses,

etc., while at the same time avoiding sharing with third party

advertisers mined and analyzed information about content.

FACEBOOK, INC. v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

21

V. CONCLUSION

For reasons outlined above, the business model theory

deserves additional and focused attention. Perhaps the issue

will arise on remand below, if the trial court again determines

— this time after full and open participation by the parties and

consideration of the good cause factors discussed in the majority

opinion — that the underlying subpoena, as it exists or as it

might be revised, is viable. In any event, the business model

issue deserves to be addressed when a similar issue arises in

analogous future litigation.

CANTIL-SAKAUYE, C. J.

1

FACEBOOK, INC. v. SUPERIOR COURT

S245203

Concurring Opinion by Justice Cuéllar

Lance Touchstone served a subpoena on Facebook, but the

company denies it has any responsibility to honor it because it

claims protection under the federal Stored Communications Act

(18 U.S.C. § 2701 et seq.; the SCA). We decline to address the

parties’ arguments about this issue because it remains unclear

whether good cause supports Touchstone’s subpoena. (Cf.

Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1102.) But as

the Chief Justice observes in her own separate opinion, nothing

in our majority opinion renders any less important the crucial

matter of how broadly to read the SCA — and, in particular,

whether it protects Facebook and similar entities from the duty

to honor valid subpoenas issued by our state courts. I write to

explain why, in the appropriate case, courts ought to take up

that very question.

Congress enacted the SCA in 1986 to create a “fair balance

between the privacy expectations of citizens and the legitimate

needs of law enforcement.” (H.R.Rep. No. 99-647, 2d Sess., p. 19

(1986).) To this end, the SCA “creates limits on the

government’s ability to compel [network service] providers to

disclose information in their possession about their customers

and subscribers.” (Kerr, A User’s Guide to the Stored

Communications Act, and a Legislator’s Guide to Amending It

(2004) 72 Geo.Wash. L.J. 1208, 1212, fn. omitted.) Yet the SCA

does not apply to all providers storing online communications.

FACEBOOK, INC. v. SUPERIOR COURT

Cuéllar, J., concurring

2

As the majority opinion explains, the only entities covered are

those providing “electronic communication service” or “remote

computing service.” (Maj. opn., ante, at p. 40; see also Kerr, at

p. 1214 [“The SCA is not a catch-all statute designed to protect

the privacy of stored Internet communications”].) Courts —

including our own — have nonetheless assumed that social

media entities such as Facebook are regulated by the SCA. (See,

e.g., Facebook v. Superior Court (Hunter) (2018) 4 Cal.5th 1245,

1268, fn. omitted [“We see no reason to question [the] threshold

determination” that Facebook is “governed by . . . the SCA”].)

Why that assumption deserves to be probed is something

this case starkly illustrates. Touchstone and the San Diego

County District Attorney devote a substantial portion of their

briefing to a theory that no court appears to have addressed:

that because Facebook’s terms of service grant Facebook legal

rights to users’ communications content, and because Facebook

shares users’ data with third parties, the company doesn’t fall

within the ambit of the SCA. For this reason, they argue,

Facebook may not rely on the SCA as a shield that protects it

from complying with a subpoena seeking users’

communications.

Whether or not these arguments are ultimately

persuasive, courts should examine them in the appropriate

cases. They should endeavor to discern whether Congress’s

purpose in enacting the SCA encompassed protecting

communications held by social media companies such as

Facebook. That question is an important one: Computers,

smartphones, and digital media have become ubiquitous in our

society, making ever more cases turn on evidence stored by

digital platforms. (See, e.g., Facebook v. Superior Court

(Hunter) (2020) 46 Cal.App.5th 109, review granted June 10,

FACEBOOK, INC. v. SUPERIOR COURT

Cuéllar, J., concurring

3

2020, S260846).) Facebook acknowledged as much at oral

argument, admitting that if it were free from any obligation “not

to turn over this information, then we wouldn’t be here” — its

“only interest in this case” is in resolving the scope of the SCA

and the protections it provides. So the Chief Justice is right to

admonish: Arguments regarding the SCA “deserve[] additional

and focused attention” in future litigation. (Conc. opn. of CantilSakauye, C. J., ante, at p. 21.) Given the SCA’s potentially

profound implications on the availability of such digital

evidence, I agree. The companies storing ever-expanding troves

of data about our lives would surely benefit from greater clarity

about the full extent of their responsibility to honor a valid

subpoena. So would the people of California.

CUÉLLAR, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Facebook, Inc. v. Superior Court

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XX 15 Cal.App.5th 729

Rehearing Granted

__________________________________________________________________________________

Opinion No. S245203

Date Filed: August 13, 2020

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Kenneth Kai-Young So

__________________________________________________________________________________

Counsel:

Perkins Coie, James G. Snell, Christian Lee; Gibson, Dunn & Crutcher, Joshua S. Lipshutz and Michael J.

Holecek for Petitioner.

Horvitz & Levy, Jeremy B. Rosen, Stanley H. Chen and Eric S. Boorstin for Google Inc., Oath Inc.,

Twitter, Inc., and California Chamber of Commerce as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Megan Marcotte, Chief Deputy Alternate Public Defender, and Katherine I. Tesch, Deputy Alternate Public

Defender, for Real Party in Interest.

Todd W. Howeth and Michael C. McMahon for the California Public Defenders Assocation and the Public

Defender of Ventura County as Amici Curiae on behalf of Real Party in Interest.

Law Offices of J.T. Philipsborn, John T. Philipsborn; Sanger Swysen & Dunkle, Stephen K. Dunkle; The

Law Office of Donald E. Landis, Jr., and Donald E. Landis, Jr., for California Attorneys for Criminal

Justice as Amicus Curiae on behalf of Real Party in Interest.

Jeff Adachi, Public Defender, Matt Gonzalez, Chief Attorney, Dorothy Bischoff, Deputy Public Defender,

for San Francisco Public Defender’s Office as Amicus Curiae on behalf of Real Party in Interest.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam and Karl Husoe, Deputy District

Attorneys for Intervener.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Katherine Tesch

Deputy Alternate Public Defender

450 B. Street, Suite 1200

San Diego, CA 92101

(619) 446-2900

Kal Husoe

Deputy District Attorney

330 W. Broadway, Suite 860

San Diego, CA 92101

(619) 531-4213

Joshua S. Lipshutz

Gibson, Dunn & Crutcher LLP

555 Mission Street

San Francisco, CA 94105

(415) 393-8200

For reasons outlined above, the business model theory deserves additional and focused attention. Perhaps the issue will arise on remand below, if the trial court again determines — this time after full and open participation by the parties and consideration of the good cause factors discussed in the majority

opinion — that the underlying subpoena, as it exists or as it might be revised, is viable. In any event, the business model issue deserves to be addressed when a similar issue arises in analogous future litigation.