Filed 9/26/17

                             CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                  STATE OF CALIFORNIA



FACEBOOK, INC.,                               D072171

        Petitioner,                           (San Diego County
                                               Super. Ct. No. SCD268262)
        v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

        Respondent;

LANCE TOUCHSTONE,

        Real Party in Interest.


        ORIGINAL PROCEEDINGS in mandate challenging an order of the Superior

Court of San Diego County, Kenneth K. So, Judge. Petition granted.

        Perkins Coie LLP, James G. Snell and Christian Lee for Petitioner.

        No appearance for Respondent.

        Office of the Alternate Public Defender, Megan Marcotte, Chief Deputy Alternate

Public Defender, and Katherine I. Tesch, Deputy Alternate Public Defender, for Real

Party in Interest.
       The issue whether a criminal defendant has a constitutional right to obtain social

media records from an electronic communication or remote computing service is

currently under review by the California Supreme Court in Facebook, Inc. v. Superior

Court (2015) 240 Cal.App.4th 203, review granted December 16, 2015, S230051

(Facebook I). In this case, we address the same issue knowing that our high court will

likely grant review and hold this matter pending a decision in Facebook I. Nonetheless,

we publish our thoughts agreeing with the conclusion in Facebook I for their potential

persuasive value. (Cal. Rules of Court, rules 8.1105(e), 8.1115(e)(1) [published opinions

for which the Supreme Court has granted review have no binding or precedential value

but may be cited for potential persuasive value only].) Accordingly, the petition for writ

of mandate is granted.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Real party in interest Lance Touchstone is awaiting trial in respondent San Diego

County Superior Court (the trial court) on a charge of attempting to murder Jeffrey R.

(the victim). (Pen. Code, §§ 664/187, subd. (a).) After the shooting incident, the victim

has been active on his personal Facebook, Inc., (Facebook) account. He posted updates

of his physical recovery from the hospital, requesting private messages over the

Facebook messaging system. On the public portion of his Facebook page that is visible

to all Facebook users, the victim posted updates of court hearings in this case, asking his

friends to attend the preliminary hearing. In public posts the victim also discussed his

personal use of guns and drugs, and described his desire to rob and kill people.




                                             2
       Believing nonpublic content of the victim's Facebook account might provide

exculpatory evidence helpful in preparing for trial, Touchstone served petitioner

Facebook1 with a subpoena for the subscriber records and contents of the victim's

Facebook account, including timeline posts, messages, phone calls, photos, videos,

location information and user-input information from account inception to the present

date. Facebook filed a motion to quash the subpoena on the ground the Stored

Communications Act (SCA) (18 U.S.C.2 § 2701 et seq.) prohibited disclosure of the

victim's account contents. In an accompanying declaration, counsel for Facebook stated

that Touchstone could obtain the requested contents directly from the victim or by

working with the prosecutor to obtain a search warrant based on probable cause.

       Touchstone opposed the motion on the grounds he had a plausible justification for

requesting the contents of the victim's account, he should be allowed to obtain the

contents because law enforcement could do so by a search warrant, his constitutional

right to a fair trial trumped the SCA, and he could not obtain the contents from other

sources because the victim was uncooperative and the prosecutor had not obtained a

search warrant. At oral argument, defense counsel represented that the prosecution

1      Founded in 2004, Facebook's "mission is to give people the power to build
community and bring the world closer together. People use Facebook to stay connected
with friends and family, to discover what's going on in the world, and to share and
express what matters to them." (Facebook, Company Info
<https://newsroom.fb.com/company-info/> [as of Sept. 25, 2017].) Users create a
"profile" where they choose what to share, "such as interests, photos and videos, and
personal information like current city and hometown." (Facebook, Products
<https://newsroom.fb.com/products/> [as of Sept. 25, 2017].)

2      Undesignated statutory references are to title 18 of the United States Code.

                                             3
refused to issue a search warrant for the material and that she has been unable to locate

the victim to serve him with a subpoena. The trial court denied the motion to quash and

ordered Facebook to produce the contents of the victim's account for in camera inspection

by a certain date.

       Facebook seeks a writ directing the trial court to vacate its order denying the

motion to quash the subpoena and to enter a new order granting the motion to quash.

Facebook contends the trial court abused its discretion by denying the motion to quash

and ordering production of documents for in camera inspection because the SCA

prohibits Facebook from disclosing the content of its users' accounts in response to a

subpoena. Facebook further contends that compelling it to disclose the contents of the

victim's account is not necessary to preserve Touchstone's constitutional right to a fair

trial because Touchstone can obtain the contents directly from the victim or through the

prosecutor via a search warrant.

       Facebook contends this court should adhere to the decision in Facebook I that a

criminal defendant has no constitutional right to pretrial discovery of information

protected from disclosure by the SCA. Facebook contends writ review is needed because

it cannot appeal the order denying the motion to quash; the trial court abused its

discretion by ordering production of contents protected from disclosure by the SCA;

Facebook risks civil liability if it complies with the order or contempt if it does not; and

the statutory and constitutional issues involved are novel, of widespread interest, and the

subject of conflicting trial court rulings. Facebook also seeks an immediate stay of the

challenged order to remain in effect until this court rules on the writ petition.


                                              4
       We stayed the production order pending consideration of the petition and

requested an answer. Touchstone filed an answer. We issued an order to show cause to

the respondent trial court why the relief requested in the petition should not be granted

and stayed all further proceedings in the trial court. We requested and obtained

supplemental briefing on the following three questions: (1) Does the supremacy clause

prohibit enforcement of the subpoenas? (See U.S. Const., art. VI; Olszewski v. Scripps

Health (2003) 30 Cal.4th 798, 815 ["A state law actually conflicts with federal law

'where it is impossible for a private party to comply with both state and federal

requirements . . . .' "]); (2) If the materiality of private electronic communications is

shown during trial, can the trial court compel a subscriber (such as the victim) or a

witness who is also a recipient of a private electronic communication from the victim to

consent to disclosure by Facebook of electronic communications for an in camera

review? (See § 2702(b)(3); Juror Number One v. Superior Court (2012) 206 Cal.App.4th

854); and (3) If the trial court may compel a witness to produce private electronic

communications, what procedures or protections exist, or may be implemented to prevent

a witness from deleting the communications?"

                                        DISCUSSION

                                         I. THE SCA

       Congress passed the Electronic Communications Privacy Act of 1986 (ECPA)

(Pub.L. No. 99–508 (Oct. 21, 1986) 100 Stat. 1848) to amend the federal wiretap law and

protect against the unauthorized interception of electronic communications and afford

privacy protection to electronic communications based on technological advances that


                                               5
make it "possible for overzealous law enforcement agencies, industrial spies and private

parties to intercept the personal or proprietary communications of others." (ECPA

(Sen.Rep. No. 99–541, 2d Sess. pp. *1, 3 (1986) (Sen.Rep. No. 99–541), reprinted in

1986 U.S. Code Cong. & Admin. News at pp. 3555, 3557.) Chapter 119 of the ECPA

(§§ 2510-2522) protects wire, oral, and electronic communications while in transit

(Wiretap Act). (Scolnik, Protections for Electronic Communications: The Stored

Communications Act and the Fourth Amendment (Oct. 2009) 78 Fordham L.Rev. 349,

375 & fn. 228 (Scolnik, Protections).) Chapter 121 of the ECPA created the SCA

(§§ 2701-2712) to protect communications held in electronic storage. (Scolnik,

Protections, at p. 375 & fn. 229.) Chapter 206 (§§ 3121-3127) restricts the use of pen

registers (Pen Register Act). (Scolnik, Protections, at p. 375 & fn. 230.)

       "The Fourth Amendment provides no protection for information voluntarily

disclosed to a third party, such as an Internet Service Provider (ISP). [Citations.] [¶] 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. [Citation.] '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 [law] 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.' " (Juror Number One v. Superior

Court, supra, 206 Cal.App.4th at p. 860.)


                                              6
       Except as provided in section 2702(b) and (c), the SCA prohibits a person or entity

providing electronic communication services or remote computing services to the public

from "knowingly divulg[ing]" the contents of a communication while in electronic

storage by that service, or which is carried or maintained on that service.3 (§ 2702(a)(1)

& (2).) Section 2702(b) and (c) contain exceptions that allow a provider to disclose a

communication under certain circumstances. Section 2702(c) allows a provider to

divulge information about a subscriber, but not the content of communications. Section

2702(b) sets forth eight exceptions to the section 2702(a) prohibition on disclosing

contents of communications. Touchstone does not argue that any of these exceptions

apply. Our independent review of these exceptions convinces us that none apply to the

instant situation where a criminal defendant is asking a provider to divulge the contents

of a subscriber's private communication. (See also Zwillinger & Genetski, Criminal

Discovery of Internet Communications Under the Stored Communications Act: It's Not a

Level Playing Field (Winter 2007) 97 J. Crim. Law & Criminology 569, 584 ["None of

the[ ] exceptions [in the SCA] provide a basis for a disclosure in response to a subpoena

served by a criminal defendant, nor a court order secured at the defendant's request."]

(Zwillinger, Criminal Discovery).) Thus, there is no need for us to review each

exception. Instead, we discuss two exceptions relevant to our later discussion.




3      An "electronic communication service" is "any service which provides to users
thereof the ability to send or receive wire or electronic communications." (§ 2510(15).)
A "remote computing service" means "the provision to the public of computer storage
and processing services by means of an electronic communications system." (§ 2711(2).)

                                             7
       First, a provider may divulge the contents of a communication as authorized by

section 2703. (§ 2702(b)(2).) Section 2703 creates procedures for governmental entities

to obtain certain information from providers. As relevant here, there is a warrant

procedure for a governmental entity to obtain the contents of communications.

(§ 2703(b).) Additionally, a provider may divulge the contents of a communication "with

the lawful consent of the originator or an addressee or intended recipient of such

communication, or the subscriber in the case of remote computing service."

(§ 2702(b)(3).) Accordingly, under section 2702(b)(3), anyone can seek the contents of

private electronic communications by obtaining the consent from the originator of the

communication (i.e., the victim in this case), or any addressee or intended recipient of the

communication.

       Unless an exception applies, the language of section 2702(a)(1) and (2) broadly

prohibits providers from voluntarily sharing subscribers' communications and does not

distinguish between public and private content because this is done elsewhere.

Specifically, section 2511, part of chapter 119 of the ECPA (§§ 2510-2522), addresses

the interception and disclosure of communications, including electronic communications.

Section 2511(2)(g)(i) provides: "It shall not be unlawful under this chapter or chapter

121 of this title for any person—[¶] (i) to intercept or access an electronic

communication made through an electronic communication system that is configured so

that such electronic communication is readily accessible to the general public." (Italics

added.) Chapter 121 is the SCA.




                                              8
       Thus, section 2511(2)(g)(i) makes express what is otherwise supported by logic—

that anyone can retrieve electronic communications that are readily accessible to the

general public. The purpose of the EPCA was to give the same Fourth Amendment

protection to electronic communications as other types of communications. (Juror

Number One v. Superior Court, supra, 206 Cal.App.4th at p. 860.) If electronic content

(be it text, photos or videos) is readily accessible to the general public there is absolutely

no need for the government to obtain a search warrant to view this content. Similarly,

there is no need for a private individual to subpoena a service provider such as Facebook

to obtain this information. Rather, like defense counsel did here, anyone can easily

access this public information.

       In contrast, if the user of an electronic communication service or remote

computing service limits his or her intended audience, be it an audience of one or one

thousand, the content is not readily accessible to the general public. Congress impliedly

defined private electronic content as anything that is not readily accessible to the general

public. (§ 2511(2)(g)(i).) Accordingly, to determine whether an electronic

communication is public or private, we need not engage in arbitrary line drawing based

on the number of people who received an electronic communication.

       An analogy may be useful. Families often use the regular postal service to mail

holiday greetings to friends and relatives informing them of highly personal events such

as births, deaths, illness or job loss, including personal photographs. Such information

does not become "less private" because the particular family has many friends and

relatives. Similarly, a Facebook subscriber who posts electronic holiday greetings to


                                               9
specific individuals does not lose privacy protection because the user posts to a large

group of individuals in contrast to a small group of individuals.

       To further the analogy, the sender of a private mail communication can later

decide to publish the contents of that private communication in a newspaper; thus,

making the private communication readily accessible to the general public. A Facebook

user can do the same thing using the internet. An electronic communication originally

configured to be private, meaning it is restricted to specific individuals, can later be made

accessible to the general public by posting it where anyone can access the

communication. Under both instances, a once private communication forever loses

privacy protection when the sender makes the communication readily accessible to the

general public.

                               II. CRIMINAL DISCOVERY

       Touchstone contends that forcing him to proceed to trial without the authenticated

production of the victim's social media records violates his constitutional rights to a fair

trial, effective assistance of counsel, confrontation, and compulsory process. He asserts

that his constitutional rights prevail over the victim's right to privacy contemplated in the

SCA. Touchstone argues that respondent court should be given the discretion to review

the victim's social media records in camera and that the victim's privacy rights are

adequately protected by a careful in camera review that bars disclosure of irrelevant

records and bans the dissemination of records produced without appropriate protective

orders. Touchstone asks us to declare the SCA unconstitutional insofar as it deprives trial

courts the discretion to conduct an in camera review of social media records.


                                             10
       Before we can address whether trial courts have the discretion to conduct an in

camera review of social media records, we must address the constitutionality of the SCA

in so far as it unambiguously prohibits providers from voluntarily sharing subscribers'

communications. Stated differently, if the SCA prohibition on providers voluntarily

sharing subscribers' communications is constitutional, then trial courts lack the discretion

to conduct an in camera review. We review the constitutionality of a statute de novo.

(United States v. Xiaoying Tang Dowai (9th Cir. 2016) 839 F.3d 877, 879.) Out of

respect for the coordinate branches of government, a court can invalidate duly enacted

statutes "only upon a plain showing that Congress has exceeded its constitutional

bounds." (United States v. Morrison (2000) 529 U.S. 598, 607.)

       As a preliminary matter, the United States Supreme Court stated 40 years ago that

"[t]here is no general constitutional right to discovery in a criminal case." (Weatherford

v. Bursey (1977) 429 U.S. 545, 559; Wardius v. Oregon (1973) 412 U.S. 470, 474 ["[T]he

Due Process Clause has little to say regarding the amount of discovery which the parties

must be afforded."].) However, due process requires the prosecution to disclose

favorable, material evidence to the accused. (Brady v. Maryland (1963) 373 U.S. 83, 87.)

The California Supreme Court has similarly recognized that " '[t]here is no general

constitutional right to discovery in a criminal case.' " (People v. Valdez (2012) 55 Cal.4th

82, 109-110 [quoting Weatherford, at p. 559]; People v. Maciel (2013) 57 Cal.4th 482,

508 [same]; People v. Mena (2012) 54 Cal.4th 146, 160 [same]; see also Schaffer v.

Superior Court (2010) 185 Cal.App.4th 1235, 1243 ["Both the United States and

California Supreme Courts have held that a criminal defendant does not possess a general


                                             11
constitutional right to discovery."].) We examine Touchstone's claims against this

backdrop.

       A. Right to Confrontation

       The confrontation clause of the Sixth Amendment to the United States

Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him." The confrontation clause

applies to the states through the Fourteenth Amendment to the United States Constitution.

(Pointer v. Texas (1965) 380 U.S. 400, 403.) The United States Supreme Court

explained that "the principal evil at which the Confrontation Clause was directed was the

civil-law mode of criminal procedure, and particularly its use of ex parte examinations as

evidence against the accused." (Crawford v. Washington (2004) 541 U.S. 36, 50.) The

court, however, has not yet resolved the issue whether "the right of confrontation

embraces a right to discover information necessary to make cross-examination effective."

(People v. Abel (2012) 53 Cal.4th 891, 931.) As we shall explain, the California Supreme

Court has addressed this issue, but it remains to be seen whether the issue has been

resolved.

       The court in People v. Reber (1986) 177 Cal.App.3d 523 (Reber) found that the

court should weigh, at an in camera hearing, the defendant's constitutional right to

confront a witness against the witness's privilege to keep psychiatric records confidential.

(Id. at p. 532.) The California Supreme Court overruled Reber and its progeny in People

v. Hammon (1997) 15 Cal.4th 1117 (Hammon): "In seeking disclosure of documents

protected by the psychotherapist-patient privilege, defendant relied on [Reber] and cases


                                             12
following that decision. [Citations.] This line of authority, we now determine, is not

correct. The court in Reber believed the confrontation clause of the Sixth Amendment

(U.S. Const., 6th Amend.), as interpreted in Davis v. Alaska (1974) 415 U.S. 308,

required pretrial disclosure of privileged information when the defendant's need for the

information outweighed the patient's interest in confidentiality. In authorizing disclosure

before trial, however, Reber went farther than Davis required, with insufficient

justification." (Hammon, at p. 1123, italics added.)4

       In Hammon, the California Supreme Court "decline[d] to extend the defendant's

Sixth Amendment rights of confrontation and cross-examination to authorize pretrial

disclosure of privileged information" (Hammon, supra, 15 Cal.4th at p. 1128) and held

"the trial court did not err in refusing to review in camera the documents sought by

subpoena." (Ibid.) Thus, even upon a sufficient showing, a trial court is not required to

allow pretrial "review or grant discovery of privileged information in the hands of third

party psychotherapy providers." (Id. at p. 1119.) Rather, access to such information

must await a showing of materiality during trial, with the trial court balancing the

defendant's need for cross-examination with the policies the privilege is intended to

serve. (Id. at p. 1127.) As one treatise explained, the trial court conducts an in camera

hearing during trial to determine if the defendant's need for the material outweighs the



4      Justice Mosk, who concurred in the result that quashing the subpoenas duces
tecum that defendant served on the psychotherapists was harmless beyond a reasonable
doubt, went on to note that the majority did "not disapprove Reber's holding because they
conclude that it is wrong. Rather, they do so because the United States Supreme Court
has not yet concluded that it is right." (Hammon, supra, 15 Cal.4th at pp. 1130, 1129.)

                                             13
statutory privilege. (1 Rucker & Overland, Cal. Crim. Practice: Motions, Jury Instns. &

Sentencing (4th ed.) § 15:54.)

       Facebook relies on Hammon for the proposition that there is no general

constitutional right to discovery in a criminal case under the Fifth or Sixth Amendments.

In Facebook I, our high court is reexamining Hammon, indicating that the issues before it

include whether the appellate court properly applied the SCA and Hammon to conclude

defendants were not entitled to pretrial access to records in the possession of Facebook

and others, and whether it should limit or overrule Hammon.

       Since deciding Hammon the California Supreme Court has cited it, in varying

contexts, for the proposition that a criminal defendant is not entitled to pretrial discovery.

(People v. Valdez, supra, 55 Cal.4th at pp. 105-110 [no constitutional violation in

withholding witnesses' identities before trial]; People v. Maciel, supra, 57 Cal.4th at pp.

507-508 [same]; People v. Clark (2011) 52 Cal.4th 856, 983-984 [no Sixth Amendment

violation where the prosecution does not disclose a witness's criminal conviction prior to

guilt phase]; People v. Martinez (2009) 47 Cal.4th 399, 454, fn. 13 [Sixth Amendment

does not require granting a pretrial discovery motion for juvenile records]; People v.

Prince (2007) 40 Cal.4th 1179, 1234, fn. 10 [defendant's Sixth Amendment claim to

pretrial discovery of an FBI database on "weak footing"]; People v. Gurule (2002) 28

Cal.4th 557, 592-594 [no right to pretrial discovery of records protected by the

psychotherapist-patient and attorney-client privileges]; People v. Anderson (2001) 25

Cal.4th 543, 577, fn. 11 ["the confrontation clause gives no right to pretrial discovery that

would override a statutory or constitutional privilege"]; Alvarado v, Superior Court


                                              14
(2000) 23 Cal.4th 1121, 1134-1135 [denying pretrial disclosure of witness identities is

not constitutionally impermissible].) These cases show that the California Supreme

Court has not confined the principles articulated in Hammon to the psychotherapist-

patient privilege. "As an intermediate appellate court we take the law as we find it and

do not reexamine doctrines approved by the Supreme Court with a view to enunciating a

new rule of law." (Fuller v. Standard Stations, Inc. (1967) 250 Cal.App.2d 687, 694.)

Any change in the law must be made by the California Supreme Court.

       Accordingly, we reject Touchstone's assertion that the confrontation clause of the

Sixth Amendment mandates disclosure of otherwise privileged information for purposes

of his pretrial investigation of the prosecution's case.

       B. Right to Compulsory Process and Due Process

       The Sixth Amendment to the United States Constitution provides that a criminal

defendant has the right "to have compulsory process for obtaining witnesses in his favor."

(U.S. Const., 6th Amend.) The California Constitution similarly provides: "The

defendant in a criminal cause has the right . . . to compel attendance of witnesses in the

defendant's behalf." (Cal. Const., art. I, § 15.) The Sixth Amendment compulsory

process clause guarantees "that criminal defendants have the right to the government's

assistance in compelling the attendance of favorable witnesses at trial and the right to put

before a jury evidence that might influence the determination of guilt." (Pennsylvania v.

Ritchie (1987) 480 U.S. 39, 56 (Ritchie).) In Ritchie, the United States Supreme Court

noted that it "has had little occasion to discuss the contours of the Compulsory Process

Clause." (Id. at p. 55.) Nonetheless, the court concluded that the "compulsory process


                                              15
provides no greater protections in this area than those afforded by due process" (id. at p.

56, italics omitted) noting it traditionally evaluates claims alleging a violation of the Sixth

Amendment compulsory process clause "under the broader protections of the Due

Process Clause of the Fourteenth Amendment." (Ritchie, at p. 56.)

       Our high court appears to agree with this assessment, stating "we find no

suggestion in Ritchie that the scope of a defendant's right to a fair trial is affected by the

label attached to it." (Delaney v. Superior Court (1990) 50 Cal.3d 785, 805, fn. 18.) In

light of this authority, and because Touchstone's claims implicate the fundamental

fairness of trials, we do not separately analyze his claims under the compulsory process

clause. Rather, we base our analysis on the due process clause of the Fourteenth

Amendment to the United States Constitution. (People v. Abel (2012) 53 Cal.4th 891,

931 ["Claims such as defendant's implicate the fundamental fairness of trials and are

therefore subject to analysis under the due process clause of the Fourteenth Amendment

to the United States Constitution."].)

       "[D]ue process is, in essence, the right to a fair opportunity to defend against the

State's accusations. The rights to confront and cross-examine witnesses and to call

witnesses in one's own behalf have long been recognized as essential to due process."

(Chambers v. Mississippi (1973) 410 U.S. 284, 294.) "Under the Due Process Clause of

the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions

of fundamental fairness. [The United States Supreme Court has] long interpreted this

standard of fairness to require that criminal defendants be afforded a meaningful

opportunity to present a complete defense." (California v. Trombetta (1984) 467 U.S.


                                              16
479, 485.) A defendant's "right to present relevant evidence is not unlimited," however,

and may " 'bow to accommodate other legitimate interests in the criminal trial process.'

[Citations.] As a result, state and federal rulemakers have broad latitude under the

Constitution to establish rules excluding evidence from criminal trials." (United States v.

Scheffer (1998) 523 U.S. 303, 308.)

       Citing Ritchie, supra, 480 U.S. 39, Touchstone asserts that the SCA must allow a

mechanism through which criminal defendants, upon adequate showing, can obtain the

same records "routinely used as a sword by the prosecution and government, so that

relevant, exculpatory, material evidence contained at the same source may also be used as

a shield." In Ritchie, a defendant charged with committing sexual offenses against his

daughter sought confidential records maintained by a state protective services agency

regarding his daughter, but a state statutory scheme prohibited public disclosure of such

records, subject to specific exceptions. (Id. at p. 43.) One exception allowed the agency

to disclose the records to a " 'court of competent jurisdiction pursuant to a court order.' "

(Id. at pp. 43-44.)

       Under these facts, the United States Supreme Court determined that the trial court

erred in denying the request without inspecting the file, holding that due process of law

required the government to disclose evidence that is helpful to the accused. (Ritchie,

supra, 480 U.S. at p. 57, citing Brady v. Maryland, supra, 373 U.S. at p. 87.) The court

also noted that the state Legislature allowed disclosure of the records when a court of

competent jurisdiction "determine[d] that the information is 'material' to the defense of

the accused." (Id. at p. 58.) Ritchie does not further Touchstone's argument because the


                                              17
court, applying the rule of Brady v. Maryland, required that the government disclose the

records, not a private nonparty like Facebook. Additionally, the state statute at issue in

Ritchie allowed disclosure by court order. (Ritchie, at pp. 57-58.) Congress placed no

such provision in the SCA.5 The Richie court expressly declined to comment on whether

its result would have differed had the state statute protected the files from "disclosure to

anyone, including law-enforcement and judicial personnel." (Id. at p. 57, fn. 14.)

       Citing Rubio v. Superior Court (1988) 202 Cal.App.3d 1343 (Rubio), Touchstone

next contends that his right to a fair trial, the cross-examination of witnesses and

presentation of a complete defense must prevail over the SCA, which unjustly awards

prosecutorial access to social media records but provides no comparable access to

criminal defendants. Rubio addressed the constitutional right to privacy in marital

relations, particularly a videotape of sexual relations between a married couple that

depicted sex acts supposedly similar to the acts petitioner allegedly performed on the

minor child of the married couple. The minor child had viewed the videotape. (Id. at p.

1346.) In Rubio, our state high court followed Ritchie by ordering an in camera review of

the videotape to determine whether petitioner's right to due process outweighed the

married couple's constitutional right to privacy and their statutory privilege not to

disclose confidential marital communications. (Id. at p. 1350.)



5      At least one commentator has suggested amendments to the SCA to provide a
mechanism for criminal defendants and civil litigants to gain access to this information
directly from a provider. (See Zwillinger, Criminal Discovery, supra, at pp. 597-598
[proposing amendments to the SCA to allow disclosure of contents of communications to
criminal defendants or civil litigants].)

                                             18
       Rubio is inapposite as the matter did not involve a trial court ordering disclosure of

material expressly prohibited from disclosure by a federal statute. The order here cannot

be enforced without compelling Facebook to violate the SCA and thus runs afoul of the

principle of federal supremacy. (O'Grady v. Superior Court (2006) 139 Cal.App.4th

1423, 1451 [subpoenas compelling account bailee to violate the SCA are unenforceable

and should be quashed].) Additionally, Rubio was decided before our high court decided

Hammon, supra, 15 Cal.4th 1117, which noted that a trial court typically does not have

sufficient information before trial to balance a defendant's need for privileged

information with the policies that the privilege is intended to serve. Finally, we note that

the court ordered the married couple, the holders of the videotape, not a third party bailee,

to produce it. (Rubio, supra, 202 Cal.App.3d at p. 1346.)

       " 'The courts will presume a statute is constitutional unless its unconstitutionality

clearly, positively, and unmistakably appears; all presumptions and intendments favor its

validity.' [Citations.] When, as here, the contention is that a state rule violates due

process, the defendant must show that the rule 'offends some principle of justice so rooted

in the traditions and conscience of our people as to be ranked as fundamental.' " (City of

Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 10-11.) The question is whether the

SCA violates a fundamental conception of justice residing at the base of our civil and

political institutions, and which defines " ' "the community's sense of fair play and

decency," ' " (Dowling v. United States (1990) 493 U.S. 342, 353.) As our high court

noted in examining a state rule, the exclusion of "evidence at trial den[ies] a criminal

defendant due process only if [the rule] offend[s] fundamental principles of justice."


                                             19
(City of Los Angeles, at p. 12.) Here, Touchstone is seeking pretrial disclosure.

However, "the United States and California Supreme Courts have held that a criminal

defendant does not possess a general constitutional right to discovery." (Schaffer v.

Superior Court (2010) 185 Cal.App.4th 1235, 1243.)

       We are not persuaded by Touchstone's argument that the SCA must allow a

mechanism through which criminal defendants can gain access to the same records

routinely obtained by the prosecution and the government. A criminal prosecution "is in

no sense a symmetrical proceeding" with the prosecution "assum[ing] substantial

affirmative obligations and accept[ing] numerous restrictions, neither of which are

imposed on the defendant." (United States v. Turkish (2d Cir. 1980) 623 F.2d 769, 774.)

"The system of criminal law administration involves not only this procedural imbalance

in favor of the defendant, but also important aspects of the Government's law

enforcement power that are not available to the defendant. Subject to constitutional and

statutory limits, the Government may arrest suspects, search private premises, wiretap

telephones, and deploy the investigative resources of large public agencies. Few would

seriously argue that the public interest would be well served either by extending all of

these powers to those accused of crime or by equalizing the procedural burdens and

restrictions of prosecution and defendant at trial." (Id. at pp. 774-775.) As Facebook

points out, the trial court's order allows a criminal defendant to obtain information that

the government can only acquire with a warrant based on probable cause. (§ 2703(b).)




                                             20
       Accordingly, we reject Touchstone's assertion that the due process clause of the

Fourteenth Amendment mandates disclosure of otherwise privileged information for

purposes of his pretrial investigation of the prosecution's case.6

       In evaluating the constitutionality of the SCA it is critical to note that the SCA

governs ISP's or other electronic communications facilities, such as Facebook. The SCA

does not prohibit a provider from divulging electronic communications when an account

holder, such as the victim, receives a subpoena to produce electronic information.7

(§ 2702, subd. (b)(3).) Rather, Penal Code sections 1326 and 1327 set forth the

procedure for defendants to obtain discovery possessed by third parties, such as the

victim. These statutes "empower either party in a criminal case to serve a subpoena

duces tecum requiring the person or entity in possession of the materials sought to

6       Touchstone argues that the SCA violates his rights to effective assistance of
counsel and to present a compete defense. Under the Sixth Amendment a criminal
defendant has " 'the right . . . to have the Assistance of Counsel for his defence' " at all
critical stages in the criminal process. (Montejo v. Louisiana (2009) 556 U.S. 778, 802.)
Touchstone presented no argument or authority to support his contention that his right to
effective assistance of counsel includes the ability to compel disclosure of privileged
information from a nonparty in violation of a federal statute. (People v. Stanley (1995)
10 Cal.4th 764, 793 [general assertion unsupported by specific argument may be treated
as forfeited].) The due process clause of the Fourteenth Amendment guarantees criminal
defendants "a meaningful opportunity to present a complete defense." (California v.
Trombetta, supra, 467 U.S. at p. 485.) This right is violated by evidentiary rules that
"infring[e] upon a weighty interest of the accused" and are " 'arbitrary' or
'disproportionate to the purposes they are designed to serve.' " (United States v. Scheffer,
supra, 523 U.S. at p. 308.) Again, Touchstone's argument is presented without any
specific argument, and we fail to see how the SCA impacts his right to present a complete
defense where the evidence he seeks is available through the victim.

7      Facebook represents that any Facebook account holder, such as the victim, can
access his or her account using the "Download Your Info" tool and user "Activity Log."
(See <http://www.facebook.com/help/405183566203254/ > [as of Sept. 25, 2017].)

                                             21
produce the information in court for the party's inspection." (Alford v. Superior Court

(2003) 29 Cal.4th 1033, 1045.)

       The logistics of actually obtaining pretrial electronic communications from a third

party witness is a matter that the parties can address with the trial court. (See Pitchess v.

Superior Court (1974) 11 Cal.3d 531, 535 ["[T]he right of an accused to seek discovery

in the course of preparing his defense to a criminal prosecution is a judicially created

doctrine evolving in the absence of guiding legislation."].) Under the SCA, the trial court

can order the account holder to consent to the disclosure by Facebook under section

2702(b)(3) which allows a provider to divulge the contents of a communication "with the

lawful consent of the originator or an addressee or intended recipient of such

communication, or the subscriber in the case of remote computing service."

(§ 2702(b)(3); Negro v. Superior Court (2014) 230 Cal.App.4th 879, 899 [consent

expressly given by account holder pursuant to court order constituted " 'lawful consent' "

under the SCA]; Juror Number One v. Superior Court, supra, 206 Cal.App.4th at p. 865

["If the court can compel Juror Number One to produce the information, it can likewise

compel Juror Number One to consent to the disclosure by Facebook."]; In re Subpoena

Duces Tecum to AOL, LLC (E.D.Va. 2008) 550 F.Supp.2d 606, 613, fn. 5 [noting in

dicta that court could order "under the pain of sanctions" nonparty witnesses to consent to

AOL's disclosure of e-mails]; Romano v. Steelcase Inc. (2010) 907 N.Y.S.2d 650, 656

[requiring plaintiff to deliver "a properly executed consent and authorization" to

Facebook and MySpace records]; Al Noaimi v. Zaid (D.Kan. Oct. 5, 2012, No. 11-1156-

EFM) 2012 U.S. Dist. LEXIS 144061 at *10 [ordering the plaintiff/subscriber to execute


                                             22
a consent for the release of e-mail communications and directing that the consent be

attached to and served with the subpoena to the provider].)

       As another court noted, the obligation to produce materials within a person's

control "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 v. City of Detroit (E.D.Mich.

2008) 252 F.R.D. 346, 363.) Should the third party witness refuse to comply with a

subpoena, the court can immediately order the witness to comply and fashion an

appropriate order for noncompliance. (See, e.g., Pen. Code, § 1054.5, subds. (b) & (c)

[describing possible court orders for failing to comply with criminal discovery statutes].)

To avoid spoliation the trial court can order the prosecution to request that Facebook take

all necessary steps to preserve records and other evidence in its possession pending the

issuance of a further court order. (§ 2703(f) ["A provider of wire or electronic

communication services or a remote computing service, upon the request of a

governmental entity, shall take all necessary steps to preserve records and other evidence

in its possession pending the issuance of a court order or other process."].)

       Touchstone complains that the defense team has not been able to locate the victim

to serve him with a subpoena and the victim has a history of combative and defiant

behavior with law enforcement. Touchstone is also concerned about spoliation, arguing

that a savvy account holder can peruse their social media accounts, deleting only those




                                              23
records that appear harmful or damaging within a matter of minutes of receiving a

subpoena.

       As a threshold matter, these concerns apply equally to paper documents and are

not unique to electronic documents stored by third party providers. As one court noted,

"it would be far from irrational for Congress to conclude that one seeking disclosure of

the contents of e-mail, like one seeking old-fashioned written correspondence, should

direct his or her effort to the parties to the communication and not to a third party who

served only as a medium and neutral repository for the message." (O'Grady v. Superior

Court, supra, 139 Cal.App.4th at p. 1446.) In any event, we are not persuaded that

Touchstone exhausted his efforts to locate the victim. Here, the defense team attempted

to locate the victim by leaving two business cards at an address and contacting the

prosecution to arrange an interview. It does not appear that Touchstone has sought a

court order directing the People to assist in serving the subpoena. As Facebook notes, the

victim is the complaining witness and it is reasonable to infer that the prosecution will be

in contact with him before the start of trial.

       As to potential spoliation, the trial court issued an order on March 16, 2017,

requiring Facebook to preserve the victim's Facebook records, and directing Facebook

and law enforcement to not disclose the existence of the preservation order. In a sworn

declaration, counsel for Facebook represented that on March 21, 2017, Facebook

preserved the victim's account. At a minimum, the victim's Facebook records are

preserved to this date. In summary, Touchstone's concerns and the logistics of obtaining




                                                 24
electronic communications directly from an account holder are not insurmountable, nor

do they render the SCA unconstitutional.

       Finally, the records Touchstone seeks are also available by subpoena to any

addressee or intended recipient of the private communications. (§ 2702(b)(3).)

Touchstone made no showing that he contacted any of the victim's Facebook "friends"

who were recipients of the private communications to obtain the desired information.8

Alternatively, Touchstone can wait until trial to seek the victim's private Facebook

records. At that time, when the victim's private Facebook communications become

relevant to the defense, the trial court can take a recess and order the victim to consent to

Facebook's production of his private Facebook communications for in camera review.

The logistics of the potential production during trial is a matter that can, and should, be

addressed with the trial court before trial commences.

                                      III. SUMMARY

       The SCA expressly prohibits electronic communication service providers from

"knowingly divulg[ing] to any person or entity the contents of a communication."

(§ 2702(a)(1).) This statutory prohibition is subject to limited exceptions, none of which

apply. (§ 2702(b)(1)-(8).) As we have discussed, Touchstone's constitutional challenges

to the SCA lack merit. Accordingly, the supremacy clause (U.S. Const., art. VI) prohibits

enforcement of the trial court's order because "California's discovery laws cannot be




8      Defense counsel can also work with the People to obtain a search warrant for the
records, however, it appears that Touchstone has exhausted this avenue of relief.

                                             25
enforced in a way that compels [a provider] to make disclosures violating the [SCA]."

(Negro v. Superior Court, supra, 230 Cal.App.4th at pp. 888-889.)

                                         DISPOSITION

       Let a peremptory writ of mandate issue directing that respondent superior court

vacate its order denying petitioner's motion to quash subpoenas duces tecum and vacate

order allowing subpoena duces tecum, and enter a new order granting petitioner's motion.

The temporary stay is vacated effective upon the issuance of the remittitur.




                                                                     NARES, Acting P. J.

WE CONCUR:



HALLER, J.



O'ROURKE, J.




                                            26
