I found a very interesting case in my daily Westlaw feed the other day that raised some important points about the line between privacy and the right to a fair trial. The opinion by the California Court of Appeals, Juror Number One v. Superior Court of Sacramento County (2012 WL 1959466 (Cal. Ct. App., May 31, 2012)), is a fascinating look into the balance of privacy expectations and the criminal justice system. I’ll start with a quick summary of the background before diving into the court’s determinations.
The People of California accused several men of severely beating another man on Halloween night in 2008. The jury trial, held in Sacramento Superior Court, took more than two months to complete. The jury found the defendants guilty and convicted them on several counts. After the completion of the trial, one of the jurors, Juror Number One (JN1) contacted another juror through Facebook about the case that was not presented at trial. The court conducted interviews with several jurors about their knowledge of the posts and JN1’s conduct. It learned that JN1 posted to his wall approximately “every other day” and made at least one comment about the evidence presented. The court determined this behavior constituted juror misconduct and ordered JN1 to furnish to the court the posts he made during the trial.
Because he had deleted several of his posts from that time period, the court demanded that JN1 execute a consent to form that it could submit to Facebook to retrieve the deleted posts. JN1 objected to the court’s order on the grounds that it violated his 4th and 5th Amendment rights to reasonable expectations of privacy and protections offered by the Stored Communications Act (SCA).and sent her a “friend” request. Upon accepting the request, the second juror discovered that JN1 had made several posts to his Facebook wall while the trial was still ongoing. This violated a specific instruction to the jury not to communicate with anyone outside the court, lest they acquire knowledge
JN1’s best case centers around the protections offered by the SCA, a federal law crafted to fill in a gap in people’s privacy rights created by online computer systems. The primary issue addressed by the SCA, briefly, is that communications transmitted over the Internet are necessarily received and transmitted by third party services. Prior to the law’s passage, any information made available to a third party lost 4th Amendment protection. Without the SCA, there would be no privacy or security in communications over the internet because every single packet of information has to pass through dozens (if not hundreds) of computers on its way to its final destination. While there are some technical questions that the court addresses, I will cut to chase and summarize its conclusions. The SCA prohibits the third parties who transmit or store private communications from revealing their content without authorization by the sending or receiving parties. This applies even where the information is directed at multiple parties, such as a bulletin board service or Facebook wall–provided that the user’s account is limited to defined people and not an open “network,” such as those in the City of Sacramento. What the SCA does not do, however, is prevent a court from compelling the party who holds the account to authorize its access to the information it seeks. While it cannot conduct a fishing expedition, with reasonable suspicion a court or prosecutor may gain access through either a subpoena or ordinary document request under FRCP 34.
A concurrence to the Court’s opinion contends that the district court erred in ordering JN1 to authorize Facebook to release the juror’s wall posts rather than simply demanding that JN1 produce them himself. The majority addresses this by pointing out that JN1 had routinely deleted posts he made during the time he was on trial, leaving only a select few online when he became “friends” with another juror. This made it practically impossible for JN1 to produce the posts himself because they were only retrievable by Facebook, if they were retrievable at all.
Rounding out his case against acquiescing to the court’s demand, JN1 makes a rather desperate attempt to argue that his statements posted to Facebook are protected from governmental demands by U.S. Constitution. Starting with the 4th Amendment, JN1 tries to assert that he has a reasonable expectation of privacy with regard to his Facebook posts. The right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” stops cold, however, when the people make those materials available for others to see on a social networking service. JN1 offered no citation to authority for why the 4th Amendment should apply in this case and with good reason. The best argument I can think of is that Facebook offers the ability to share information with a limited audience. This has little merit, which is probably why JN1 did not even bother to make it. If you need me to explain this further, I’d be happy to, but I’m guessing it’s rudimentary enough that we can just move on.
The 5th Amendment states that no person “shall be compelled in any criminal case to be a witness against himself.” Although some of the analogies to real-world issues can get a bit confusing, I have already discussed that this does not prevent the government from demanding access to computers or online accounts if they have a reasonable suspicion that there is illicit material hidden behind a password or firewall. The 5th Amendment cares not for recordings of words you have already expressed but hidden behind lock and key. That is left to the 4th Amendment, which, as implied above, is surmountable by a court with reasonable suspicion. So that argument would also fail, if JN1 had bothered to make it.
JN1 finally tries to argue that there was no real harm done to the criminal defendants by his misconduct because he never read posts to his own wall from others about the case he was on, if any appeared at all. This is simply absurd, as the major case recently issued by the 9th Circuit Court of Appeals relating to the CFAA pointed out that any data that is observed is considered stolen because simply learning about something that was stored on a protected computer conveys the knowledge to the reader.
The key lesson to draw from this experience is that, if you are ever called to jury duty, it is imperative that you follow the court’s instructions not to post or read anything to any social media site while you are in trial or deliberations. There is no right to privacy in the statements you make, either to a social networking site or even in private email communications. The government’s interest in providing defendants with a fair trial and an impartial jury is far more compelling than any individual’s privacy interest in communications to the outside world.