Social Media Companies May Prevent Your Ability to Defend Yourself

Filed under: Criminal Law by Contributor @ January 29, 2018

The Stored Communications Act of 1986 prohibits third parties, including social media giants like Twitter, Instagram, Tumblr and Facebook, from “knowingly” disseminating customers’ information with any individuals apart from the sender and intended recipient.  The law, passed long before the invention of social media and much of the technology used to communicate in 2018, is also the defense social media companies cite when refusing to comply with defense attorneys’ requests to obtain social media imperative to a defendant’s case.


Social media has become a key method of communication and, consequently, records many actions and conversations that may later become essential to a criminal investigation or to convict or exonerate the accused. Notably, the same social media companies that deny disclosure requests from criminal defendants freely disclose the same information to prosecutors and officers that obtain search warrants and/or court orders. The lack of access granted to defense attorneys attempting to defend their clients to the best of their ability has become a constitutional issue. The constitution grants criminal defendants the right to a fair trial and due process and defendants are now alleging that the Stored Communication’s Act, as applied by social media companies, is infringing upon that right. In response, legal counsel for social media giants state that the information is still available to defendants who can request it from the government via court order or by obtaining the information and consent of the individual whose account they wish to view.

This issue was brought to the forefront after Lee Sullivan was accused of participating in a 2013 murder in California by his ex-girlfriend, Reneesha Lee. The accusation was obtained after a vehicle Lee had rented was identified as the vehicle used in the drive-by shooting and Lee was found driving the vehicle a short distance from the scene just minutes after the murder occurred. Sullivan’s attorneys allege that the woman only implicated him after prosecutors threatened to charge her for her participation in the crime.  A 14-year-old male confessed to the crime and alleged that the victim had tagged him in violent social media posts. The teen claimed that the victim would have killed him if he had not been killed first. Sullivan’s attorneys subpoenaed the social media records of the victim and Lee to determine if they had in fact threatened anyone on the social media platforms. The attorneys had opted to subpoena the records because the victim was deceased and could not consent and Lee had disappeared after invoking her Fifth Amendment right against self-incrimination during the teen’s earlier murder trial and was unavailable to consent. Attorneys for the social media platforms fought the subpoenas and cited the Stored Communications Act, stating that they would only disclose the information if the defense obtained a court order or a warrant. However, in January 2015, the lower court found that defendants have a constitutional right to social media records in preparation for trial and ordered the companies to comply with the subpoena.  As a result, the companies appealed and, a few months later, the appellate court decided that if a defendant’s constitutional rights defeated the Stored Communications Act, those rights could not be accessed until trial began.

Neither the defense attorneys nor the companies were pleased with the appellate court’s decision and both will now have the opportunity to be heard by the California Supreme Court.  The Court will evaluate whether the Stored Communications Act, as employed by the companies to refuse to disclose the information, infringes upon the defendants’ constitutional right to defend themselves. In addition, the Court will also assess if the Stored Communications Act was intended to apply to circumstances where social media interactions and conduct are categorized as “private communications”.

The California Supreme Court’s decision in this case may result in a disclosure that could exonerate Sullivan and many other future defendants, or could serve to continue the uneven access to this information granted to the prosecution. The outcome of this case will likely have a long-term impact on if and how social media communications can and will be used by defendants in the future.


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