DocketNumber： No. C067309
Citation Numbers： 206 Cal. App. 4th 854, 12 Cal. Daily Op. Serv. 5991, 95 A.L.R. 6th 749, 142 Cal. Rptr. 3d 151, 2012 WL 1950184, 2012 Cal. App. LEXIS 642
Judges： Hull, Mauro
Filed Date： 5/31/2012
Status： Precedential
Modified Date： 10/19/2024
Opinion
Following the conviction of real parties in interest for various offenses stemming from an assault, respondent court learned that one of the trial jurors, fictitiously named Juror Number One, had posted one or more items on his Facebook account concerning the trial while it was in progress, in violation of an admonition by the court. The court conducted a hearing at which Juror Number One and several other jurors were examined about this and other claimed instances of misconduct. Following the hearing, the court entered an order requiring Juror Number One to execute a consent form
Juror Number One filed a petition for writ of prohibition with this court seeking to bar respondent court from enforcing its order. He contends the order violates the SCA, the Fourth and Fifth Amendments to the United States Constitution, and his state and federal privacy rights.
We conclude the SCA is not applicable to the order at issue here and Juror Number One has otherwise failed to establish a violation of constitutional or privacy rights. We therefore deny the petition.
Facts and Proceedings
Juror Number One was a juror in the trial of People v. Christian, Sacramento County Superior Court case No. 08F09791 (the criminal trial) in which the defendants, real parties in interest in this writ proceeding, were convicted of various offenses stemming from the beating of a young man on Halloween night in 2008.
The criminal trial commenced in April 2010, and the jury reached its verdicts approximately two months later, on June 25. On August 10, 2010, one of the trial jurors (Juror No. 5) submitted a declaration in which she stated, among other things, that, on or about May 18, 2010, Juror Number One had “posted comments about the evidence as it was being presented during the trial on his ‘Facebook Wall,’ inviting his ‘friends’ who have access to his ‘Facebook’ page to respond.”
On September 17, 2010, respondent court conducted a hearing on this and other allegations of juror misconduct. Four jurors were examined, including Juror Number One and Juror No. 5. Juror No. 5 testified that she did not learn about the Facebook postings until after the trial. Juror Number One had invited her to be a Facebook “friend” and this gave her access to his postings on Facebook, including those during the trial. This is when she saw the post mentioned in her declaration. According to Juror No. 5, one person had responded to the post that he or she liked what Juror Number One had said.
Juror Number One admitted that he posted items on his Facebook account about the trial while it was in progress. However, he indicated those posts contained nothing about the case or the evidence but were merely indications that he was still on jury duty. Juror Number One acknowledged that on one occasion he posted that the case had been boring that day and he almost fell asleep. According to Juror Number One, this was the day they were going
The other two jurors who were examined by the court had nothing to contribute on this issue.
At the conclusion of the hearing, respondent court indicated there had been clear misconduct by Juror Number One, but the degree of such misconduct was still at issue.
On October 7, 2010, counsel for real party in interest Demetrius Royster issued a subpoena to Facebook to produce “[a]ll postings for [Juror Number One] dated 3/01/2010 to 10/06/2010.” Attached was an order from respondent court compelling Facebook to “release any and all information, including postings and comments for Facebook member [Juror Number One].”
Facebook moved to quash the subpoena, asserting disclosure of the requested information would violate the SCA. In its memorandum in support of the motion to quash, Facebook asserted the requested information can be obtained from Juror Number One himself inasmuch as he “owns and has access to his own Facebook account, and can disclose his Facebook postings without limitation.”
On January 28, 2011, counsel for real party in interest Royster issued a subpoena to Juror Number One to produce “[a]ny and all documents provided to [him] by Facebook” and “[a]ny and all posts, comments, emails or other electronic communication sent or received via Facebook during the time [he was] a juror in the above-referenced matter.”
On February 3, 2011, Juror Number One moved to quash the subpoena.
The following day, respondent court granted Juror Number One’s motion to quash the subpoena based on overbreadth. However, the court also issued an order requiring Juror Number One to turn over to the court for in camera review all of his Facebook postings made during trial.
Juror Number One filed a petition with this court seeking to bar respondent court from enforcing its February 4, 2011, order. We summarily denied the petition. However, on March 30, 2011, the California Supreme Court granted review and transferred the matter back to us for further consideration. The high court also issued a temporary stay of respondent court’s order.
Discussion
Congress passed the SCA as part of the Electronic Communications Privacy Act of 1986 (Pub.L. No. 99-508 (Oct. 21, 1986) 100 Stat. 1848) to fill a gap in the protections afforded by the Fourth Amendment. As one commentator observed: “The Fourth Amendment offers strong privacy protections for our homes in the physical world. Absent special circumstances, the government must first obtain a search warrant based on probable cause before searching a home for evidence of crime. When we use a computer network such as the Internet, however, a user does not have a physical ‘home,’ nor really any private space at all. Instead, a user typically has a network account consisting of a block of computer storage that is owned by a network service provider, such as America Online or Comcast. Although a user may think of that storage space as a ‘virtual home,’ in fact that ‘home’ is really just a block of ones and zeroes stored somewhere on somebody else’s computer. This means that when we use the Internet, we communicate with and through that remote computer to contact other computers. Our most private information ends up being sent to private third parties and held far away on remote network servers.” (Kerr, A User’s Guide to the Stored Communications Act—And a Legislator’s Guide to Amending It (2004) 72 Geo. Wash. L.Rev. 1208, 1209-1210, fhs. omitted (Kerr).) The Fourth Amendment provides no protection for information voluntarily disclosed to a third party, such as an Internet service provider (ISP). (See Smith v. Maryland (1979) 442 U.S. 735, 743-744 [61 L.Ed.2d 220, 229, 99 S.Ct. 2577]; United States v. Miller (1976) 425 U.S. 435, 443 [48 L.Ed.2d 71, 79, 96 S.Ct. 1619].)
To remedy this situation, the SCA creates a set of Fourth Amendment-like protections that limit both the government’s ability to compel ISP’s to disclose customer information and the ISP’s ability to voluntarily disclose it. (Kerr, supra, 72 Geo. Wash. L.Rev. at pp. 1212-1213.) “The [SCA] reflects Congress’s judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility. Just as trespass protects those who rent space from a commercial storage facility to hold sensitive documents, [citation], the [SCA] protects users whose electronic communications are in electronic storage with an ISP or other electronic communications facility.” (Thoefel v. Farey-Jones (9th Cir. 2003) 359 F.3d 1066, 1072-1073.)
The SCA addresses two classes of service providers, those providing electronic communication service (ECS) and those providing remote computing service (RCS). An ECS is “any service which provides to users thereof
Any analysis of the SCA must be informed by the state of the technology that existed when the SCA was enacted. (Note, Free at What Cost?: Cloud Computing Privacy Under the Stored Communications Act (2010) 98 Geo. LJ. 1195, 1204 (Note).) “[C]omputer networking was in its infancy in 1986. Specifically, at the time Congress passed the SCA in the mid-1980s, ‘personal users [had begun] subscribing to self-contained networks, such as Prodigy, CompuServe, and America Online,’ and ‘typically paid based on the amount of time they were connected to the network; unlike today’s Internet users, few could afford to spend hours casually exploring the provider’s network. After connecting to the network via a modem, users could download or send e-mail, post messages on a “bulletin board” service, or access information.’ [Citation.] Notably, the SCA was enacted before the advent of the World Wide Web in 1990 and before the introduction of the web browser in 1994.” (Crispin v. Christian Audigier, Inc. (C.D.Cal. 2010) 717 F.Supp.2d 965, 971, fn. 15 (Crispin), quoting Note, supra, 98 Geo. LJ. at p. 1198.) In light of rapid changes in computing technology since the enactment of the SCA, “[c]ourts have struggled to analyze problems involving modem technology within the confines of this statutory framework, often with unsatisfactory results.” (Konop v. Hawaiian Airlines, Inc. (9th Cir. 2002) 302 F.3d 868, 874.)
Under the SCA, an ECS is prohibited from divulging “the contents of a communication while in electronic storage by that service.” (18 U.S.C. § 2702(a)(1).) However, the term “electronic storage” has a limited definition under the SCA. It covers “(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.” (18 U.S.C. § 2510(17).) Thus, only copies of electronic communications held by the ECS pending initial delivery to the addressee or held thereafter for backup purposes are protected. (Thoefel v. Farey-Jones, supra, 359 F.3d at pp. 1075-1076.)
An RCS is prohibited from divulging the content of any electronic transmission that is carried or maintained on its service “solely for the
In addition to protecting traditional electronic mail services and remote processing services, the courts have indicated the SCA was intended by Congress to protect electronic bulletin boards as well. “ ‘Computer bulletin boards generally offer both private electronic mail service and newsgroups. The latter is essentially email directed to the community at large, rather than a private recipient.’ [Citation.] The term ‘computer bulletin board’ evokes the traditional cork-and-pin bulletin board on which people post messages, advertisements, or community news. [Citation.] Court precedent and legislative history establish that the SCA’s definition of an ECS provider was intended to reach a private [bulletin board system], [Citations.]” (Crispin, supra, 111 F.Supp.2d at pp. 980-981.) A private bulletin board system is essentially one with restricted access rather than one open to the public at large.
In its order compelling consent to the release of Juror Number One’s Facebook postings, respondent court cited Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1130 [91 Cal.Rptr.3d 858], for the proposition that the information covered by the order “was posted so that others might read it and that it was not private in any sense that relates to this inquiry.” However, the MySpace posting at issue in Moreno was open to the public at large, not a select group of Facebook “friends” like the postings at issue here. A party does not forfeit SCA protection by making his communications available to a closed group, i.e., a private bulletin board. (Crispin, supra, 717 F.Supp.2d at pp. 980-981, fn. omitted.) Thus, respondent court’s rationale does not withstand scmtiny.
Juror Number One contends Facebook has been recognized as an ECS within the meaning of the SCA, citing Crispin, supra, 717 F.Supp.2d 965. In Crispin, the federal district court concluded Facebook and MySpace qualify as both ECS’s and RCS’s. The court provided the following description of those sites: “ ‘Facebook and MySpace, Inc., are companies which provide social networking websites that allow users to send and receive messages, through posting on user-created “profile pages” or through private messaging services.’ . . . Facebook’s user-created profile page is known as the Facebook ‘wall,’ ‘a space on each user’s profile page that allows friends to post messages for the user to see.’ These messages . . . ‘can be viewed by anyone
The court in Crispin concluded that, because Facebook and MySpace provide limited access to messages posted by users on the Facebook “wall” or the MySpace “comments” feature, there is no basis for distinguishing those features from a restricted access electronic bulletin board. There is also no basis for distinguishing the private messaging services provided by those companies from traditional Web-based e-mail. Hence, the court concluded Facebook and MySpace qualified as ECS’s. (Crispin, supra, 717 F.Supp.2d at pp. 981-982.)
The court next considered whether messages posted on the Facebook wall are in “electronic storage” within the meaning of the SCA. As noted above, this requires either that the message is in temporary, intermediate storage awaiting delivery, or is in backup storage. Regarding the former, the court noted that messages posted to the Facebook wall are not in intermediate storage awaiting delivery to the recipient, because the wall itself is the recipient or final destination for the messages. (Crispin, supra, 717 F.Supp.2d at pp. 988-989.) Nevertheless, the court found the messages, once posted, are held for backup purposes. (Id. at p. 989.) In the alternative, the court concluded Facebook qualifies as an RCS with respect to posted messages held on the wall. (Id. at p. 990.)
Assuming Crispin was correctly decided, that case did not establish as a matter of law that Facebook is either an ECS or an RCS or that the postings to that service are protected by the SCA. The findings in Crispin were based on the stipulations and evidence presented by the parties in that case. The court noted that the parties “provided only minimal facts regarding the three third-party entities that were subpoenaed.” (Crispin, supra, 717 F.Supp.2d at p. 976.) The parties cited the companies’ home pages and Wikipedia as authority. (Ibid.)
Juror Number One has provided this court with nothing, either by way of the petition or the supporting documentation, as to the general nature or specific operations of Facebook. Without such facts, we are unable to determine whether or to what extent the SCA is applicable to the information at issue in this case. For example, we have no information as to the terms of any agreement between Facebook and Juror Number One that might provide for a waiver of privacy rights in exchange for free social networking services. Nor do we have any information about how widely Juror Number One’s posts are available to the public.
In Flagg v. City of Detroit (E.D.Mich. 2008) 252 F.R.D. 346 (Flagg), the plaintiff issued subpoenas for text messages held by SkyTel, Inc., a text messaging service that had contracted with the city to provide such services until 2004 and had maintained the messages thereafter. The city moved to quash the subpoena, arguing the messages were protected by the SCA. (252 F.R.D. at pp. 347-348.) The federal district court held that, because the messages remained in the constructive control of the city, they were subject to discovery under the federal rules, notwithstanding the SCA. (252 F.R.D. at pp. 352-357.) However, the proper procedure would be to seek the information by a document request to the city rather than a third party subpoena. (Id. at p. 366.) To the extent consent of the city is required by the SCA, the city has an obligation under the discovery rules to provide that consent to the service provider. (252 F.R.D. at p. 359.)
In effect, the court in Flagg equated the situation presented to that where the materials sought to be discovered were in the actual possession of the party. The court explained: “[A] party has an obligation under [Federal Rules of Civil Procedure,] Rule 34 to produce materials within its control, and this obligation carries with it the attendant duty to take the steps necessary to exercise this control and retrieve the requested documents. . . . [A] party’s disinclination to exercise this control is immaterial, just as it is immaterial whether a party might prefer not to produce documents in its possession or custody.” (Flagg, supra, 252 F.R.D. at p. 363.) The court continued: “It is a necessary and routine incident of the rules of discovery that a court may order disclosures that a party would prefer not to make. . . . [T]his power of compulsion encompasses such measures as are necessary to secure a party’s compliance with its discovery obligations. In this case, the particular device that the SCA calls for is ‘consent,’ and [the defendant] has not cited any authority for the proposition that a court lacks the power to ensure that this necessary authorization is forthcoming from a party with the means to provide it. Were it otherwise, a party could readily avoid its discovery obligations by warehousing its documents with a third party under strict instructions to release them only with the party’s ‘consent.’ ” (Ibid.; see O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1446 [44 Cal.Rptr.3d 72] [“Where a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions.”].)
Thus, the question here is not whether respondent court can compel Facebook to disclose the contents of Juror Number One’s wall postings but
Juror Number One contends disclosure of the requested information violates the Fourth Amendment “in that [he] has a legitimate expectation of privacy in the records.” However, beyond merely asserting this to be so, Juror Number One provides no argument or citation to authority. As noted earlier, Juror Number One has provided no specifics as to the operation of Facebook or the nature of his contractual relationship with the Web site. Obviously, the extent of Juror Number One’s “legitimate expectation of privacy” under the Fourth Amendment would depend on the extent to which his wall postings are disseminated to others or are available to Facebook or others for targeted advertising. Where a point is raised in an appellate brief without argument or legal support, “it is deemed to be without foundation and requires no discussion by the reviewing court.” (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [199 Cal.Rptr. 72].)
Likewise with Juror Number One’s Fifth Amendment claim. Juror Number One asserts he may not be compelled to give evidence against himself. Juror Number One again provides no further argument or citation to authority. But, more significantly, at this point in the litigation and on this record, his Fifth Amendment claim is, at best, speculative. Should Juror Number One’s rights under the Fifth Amendment in fact come into play as this litigation proceeds, the court will be able to consider and resolve them at that time.
Juror Number One argues he nevertheless has a privacy right not to disclose his Facebook posts. He cites as support Code of Civil Procedure sections 206 and 237, which protect jurors against involuntary disclosure of personal identifying information. Juror Number One argues these provisions demonstrate a strong public policy to protect jurors from being compelled to discuss their deliberations. However, as noted above, Juror Number One has failed to demonstrate any expectation of privacy in his Facebook posts. At any rate, protection against disclosure of personal identifying information that might be used by a convicted defendant to contact or harass a juror is not the same thing as protection of a juror’s communications, which themselves are misconduct.
But even if Juror Number One has a privacy interest in his Facebook posts, that interest is not absolute. It must be balanced against the rights of real parties in interest to a fair trial, which rights may be implicated by juror misconduct. Thus, the question becomes whether respondent court had the authority to order Juror Number One to disclose the messages he posted to
“A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice.” (People v. Cox (1991) 53 Cal.3d 618, 700 [280 Cal.Rptr. 692, 809 P.2d 351], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11].) “Criminal defendants have a right to trial by an impartial jury. (U.S. Const., 6th Amend.) ‘[T]here exists a “strong public interest in the ascertainment of the truth in judicial proceedings, including jury deliberations.” [Citation.] . . . Lifting the veil of postverdict secrecy to expose juror misconduct serves an important public purpose. “ ‘[T]o hear such proof would have a tendency to diminish such practices and to purify the jury room, by rendering such improprieties capable and probable of exposure, and consequently deterring jurors from resorting to them.’ ” [Citation.]’ [Citation.]” (People v. Tuggles (2009) 179 Cal.App.4th 339, 379-380 [100 Cal.Rptr.3d 820].) “When a trial court is aware of possible juror misconduct, the court ‘must “make whatever inquiry is reasonably necessary” ’ to resolve the matter.” (People v. Hayes (1999) 21 Cal.4th 1211, 1255 [91 Cal.Rptr.2d 211, 989 P.2d 645].)
Juror Number One contends the trial court had no authority to compel production of the Facebook posts, because it had completed its investigation of juror misconduct. He repeatedly asserts the trial court conducted a hearing, examined the jurors, and found the jurors testified truthfully. Implicitly, Juror Number One questions the need for any further investigation of the matter, inasmuch as he testified he posted nothing of substance on Facebook. According to Juror Number One, once he informed the court under oath that he did not post anything of substance to Facebook, the court has no power to inquire further. Juror Number One argues the order at issue here is not really part of the court’s continued inquiry into misconduct but an effort to enforce the failed attempts by real parties in interest to subpoena the Facebook records.
Juror Number One’s assertion that the trial court accepted Juror Number One’s claim that he posted nothing substantive to Facebook is apparently based on the following comment by the court during discussions about whether to bring in additional jurors to testify; “It seems to me that all four jurors who spoke were credible. It seems to me that all four jurors were doing their best to be open and honest, and to convey what they recall with regard to the deliberations. I did not get an impression from any one of the four jurors that there was an effort to hide anything.”
But assuming the court believed Juror Number One had made no effort to hide anything, that does not also mean it believed he testified accurately.
In light of Juror Number One’s equivocation about how often and what he posted to Facebook, and the court’s express finding that there had been misconduct, with the degree of misconduct still at issue, it can hardly be said respondent court concluded its investigation of the matter. The court may have completed its examination of the jurors, but there was still some question about the content of the Facebook posts themselves. In this regard, it must be remembered that those posts are not just potential evidence of misconduct. They are the misconduct.
Juror Number One also contends respondent court’s order “necessarily encompass [es] not only [his] privacy, but that of other individuals who were not jurors, merely because they are [his] Facebook ‘friends’ and may have posted to his Facebook site during the trial.” But the order at issue here does not encompass posts by Juror Number One’s “friends.” The court ordered only that Juror Number One consent to the release of posts made by him during trial. In any event, to the extent others have posted to Juror Number One’s Facebook wall, they have given up any privacy right in those posts as to Juror Number One. It would be as if the “friend” had sent Juror Number One a letter which was still in the juror’s possession. If the juror’s papers are subject to search, then the letter from the “friend” would also be subject to search.
Juror Number One argues several of his Facebook posts were presented to the trial court during the misconduct hearing and none revealed any prejudice to real parties in interest. However, this puts the cart before the horse. If a juror were to acknowledge having consulted with an attorney during trial but refused to say what was discussed, there would be no way to determine from this alone if the communications were potentially prejudicial. By Juror Number One’s theory, the court could inquire no further.
The trial in this matter lasted approximately two months. Juror Number One admitted posting something every other day during trial. Thus, there were potentially 30 posts. Juror Number One acknowledged deleting some of his posts, although there is no explanation as to why.
In summary, in the present matter, Juror Number One does not claim respondent court exceeded its inherent authority to inquire into juror misconduct. Just as the court may examine jurors under oath (People v. Hedgecock (1990) 51 Cal.3d 395, 417-418 [272 Cal.Rptr. 803, 795 P.2d 1260]), it may also examine other evidence of misconduct. In this instance, the court seeks to review in camera the very items—the Facebook posts—that constitute the misconduct. Juror Number One contends such disclosure violates the SCA, but it does not. Even assuming the Facebook posts are protected by the SCA, the SCA protects against disclosure by third parties, not the posting party. Juror Number One also contends the order is not authorized, because the court has completed its investigation of misconduct. But such investigation obviously has not been completed. Juror Number One also contends the compelled disclosure violates his Fourth and Fifth Amendment rights. However, beyond asserting this to be so, he provides no argument or citation to authority. Thus, those arguments are forfeited. Finally, Juror Number One argues forced disclosure of his Facebook posts violates his privacy rights. However, Juror Number One has not shown he has any expectation of privacy in the posts and, in any event, those privacy rights do not trump real parties in interest’s right to a fair trial free from juror misconduct. The trial court has the power and the duty to inquire into whether the confirmed misconduct was prejudicial.
In the absence of further argument or authority, we conclude Juror Number One has failed to establish respondent court’s order exceeded its power to inquire into alleged juror misconduct. The petition for writ of prohibition must be denied.
Disposition
The petition for writ of prohibition is denied. Upon this decision becoming final, the stay previously ordered in this matter is vacated.
Raye, R J., concurred.