        IN THE SUPREME COURT OF
               CALIFORNIA

                 FACEBOOK, INC.,
                     Petitioner,
                          v.
    THE SUPERIOR COURT OF SAN DIEGO COUNTY,
                    Respondent;
              LANCE TOUCHSTONE,
               Real Party in Interest;
               SUMMER STEPHAN,
              as District Attorney, etc.,
                     Intervener.

                           S245203

           Fourth Appellate District, Division One
                         D072171

              San Diego County Superior Court
                        SCD268262



         August 13, 2020 (reposting corrected version)

Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger
and Groban concurred.

Chief Justice Cantil-Sakauye filed a concurring opinion.
Justice Cuéllar filed a concurring opinion.
           FACEBOOK, INC. v. SUPERIOR COURT
                             S245203


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


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.


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


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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               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


             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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               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


      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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               FACEBOOK, INC. v. SUPERIOR COURT
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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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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


                                  17
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


       (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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               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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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               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


      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



                                   20
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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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               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


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 right-
to-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


                                   22
              FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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




                                  23
                FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


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.)


                                   24
               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


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.)


                                   25
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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


                                  26
               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


       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.)


                                   27
               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


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 self-
defense), 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 self-
defense 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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               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


         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,

                                  29
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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–


                                  30
               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


       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.)


                                   31
                FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


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


                                  33
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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 long-
established 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.




                                  34
               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


                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 self-
defense; and (2) secondarily and alternatively, to impeach the
victim’s character and portray him as violent.


                                   35
               FACEBOOK, INC. v. SUPERIOR COURT
              Opinion of the Court by Cantil-Sakauye, C. J.


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



                                   36
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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

                                  37
              FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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.




                                  38
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


       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


                                  39
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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 <www.facebook.com/
legal/terms/plain_text_terms> (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
<https://www.courts.ca.gov/38324.htm>.
16
      Facebook, Data Policy <www.facebook.com/full_data
_use_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].


                                  40
              FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


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,


                                  41
               FACEBOOK, INC. v. SUPERIOR COURT
             Opinion of the Court by Cantil-Sakauye, C. J.


                        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.

                                  42
           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.



                                1
                FACEBOOK, INC. v. SUPERIOR COURT
                    Cantil-Sakauye, C. J., concurring


      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 <www.facebook.com/legal/
terms/plain_text_terms> (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
<http://www.courts.ca.gov/38324.htm>.) 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 <www.facebook.com/full_data
_use_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


                                   2
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring




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


                                  3
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring


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.)



                                  4
               FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


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.


                                 5
               FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


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).


                                 6
               FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


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

                                 7
              FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


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 e-
mail 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


                                 8
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring


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 ill-
suited 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”].



                                  9
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring


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


                                  10
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring




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


                                  11
               FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


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].


                                 12
                  FACEBOOK, INC. v. SUPERIOR COURT
                      Cantil-Sakauye, C. J., concurring


         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.”


                                      13
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring


      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 back-
up 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].




                                  14
              FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


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.


                                 15
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring


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


                                  16
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring


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




                                  17
              FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


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].)


                                  18
              FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


     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.



                                 19
               FACEBOOK, INC. v. SUPERIOR COURT
                   Cantil-Sakauye, C. J., concurring


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.


                                  20
              FACEBOOK, INC. v. SUPERIOR COURT
                  Cantil-Sakauye, C. J., concurring


                        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.




                                 21
          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.

                               1
              FACEBOOK, INC. v. SUPERIOR COURT
                       Cuéllar, J., concurring


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,

                                 2
               FACEBOOK, INC. v. SUPERIOR COURT
                       Cuéllar, J., concurring


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 Cantil-
Sakauye, 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.




                                 3
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
