Equalizing Access to Evidence: Criminal Defendants and the Stored Communications Act.

• Author: Steele, Rebecca

INTRODUCTION

In 2016, California resident Lance Touchstone drove to San Diego to visit his sister, Rebecca Touchstone.' Rebecca lived with her boyfriend, Jeffrey Renteria. During the visit, Lance watched his sister's boyfriend engage in increasingly strange behavior, which culminated in Jeffrey taking Rebecca's personal firearms and threatening to harm both Lance and Rebecca. When Jeffrey finally burst into Rebecca's house and lunged towards them, Lance shot him, inflicting nonfatal wounds. Lance immediately set aside his weapon and called 911. (2)

Lance was charged with attempted murder and faced a maximum of twenty-two years in state prison. (3) He ultimately pled not guilty due to self-defense. (4) To support his case, he attempted to obtain Facebook posts from Jeffrey's account that included threats against his sister's life. (5) But the Stored Communications Act's (SCA) bar on the disclosure of the contents of electronic communications prevented Lance from accessing this potentially crucial evidence. (6) While the SCA has an exception that allows law enforcement to access the contents of electronic communications, there is no equivalent exception for criminal defendants. (7) In cases like Lance's, where law enforcement refuses to obtain information covered by the SCA, criminal defendants may have no way of accessing potentially exculpatory evidence.

Lance Touchstone is one of many criminal defendants impacted by privacy statutes that foreclose pathways for the defense to access information, while preserving such pathways for law enforcement. (8) Focusing on the SCA, this Note outlines strategies for overcoming this inequity by either working around the statute's prohibitions or working within its exceptions. In instances where neither route allows defendants to access exculpatory evidence, this Note argues that the SCA is unconstitutional as applied.

Part I of this Note outlines the importance of digital evidence and the structural challenges criminal defendants face in accessing it, including the "privacy asymmetries" studied by Rebecca Wexler. (9) Part II focuses on the SCA as an example of a privacy asymmetry, given the differential access to covered content afforded to the prosecution compared to the defense, and provides an overview of the statute. Working within the current SCA regime, Part III offers litigation strategies that could allow defendants to overcome barriers to accessing crucial evidence, while explaining why they may not be available or effective in many cases. Section III.A outlines pathways to evidence criminal defendants could consider to steer clear of the SCA altogether: subpoenaing senders or recipients directly, cooperating with law enforcement to secure a warrant, or challenging the classification of the online platform at issue as a provider of electronic communication services (ECS) or remote computing services (RCS) as defined by the statute. Turning to cases where the evidence in question falls within the SCA's coverage, Section III.B lays out the statutory exceptions criminal defendants can use to their advantage, including the exception for addressees or intended recipients and the exception for consent.

Finally, focusing on cases where such strategies within the current regime are not available, Part IV outlines how criminal defendants' rights under the Due Process Clause and Sixth Amendment render the asymmetrical provisions of the SCA unconstitutional. Section IV.A outlines the application of due-process jurisprudence to a criminal defendant's right to access content covered by the SCA, with a focus on arguments rooted in Brady (10) and prosecutorial misconduct, Wardius (11) and reciprocity requirements, and actual-innocence case law. Section IV.B discusses arguments grounded in the Sixth Amendment, including how a criminal defendant's rights to confrontation and cross-examination, compulsory process, and effective assistance of counsel could be violated by the denial of content covered by the SCA.

1. INEQUITIES IN CRIMINAL DEFENDANTS' ACCESS TO EVIDENCE

   Digital evidence has become increasingly important in modern criminal cases. It is commonly understood as "information and data... that is stored on, received, or transmitted by an electronic device." (12) In some cases, digital evidence comes from technologies owned and operated by law enforcement, such as gunshot-detection data, (13) location data from cell-site simulators (also known as Stingrays), (14) or facial-recognition software. (15) In other cases, digital evidence arises from devices in the possession of a victim or criminal defendant--including biometric data on a pacemaker (16) or smartwatch, (17) data collected from GPS signals, (18) and recordings from smart-home devices. (19) This Note focuses on a subset of digital evidence arising from devices in the possession of a victim, criminal defendant, or witness: the content of electronic communications like email or social media. (21)

   Digital evidence first became prominent in cases involving electronic crime or cybercrime, such as prosecutions for credit-card fraud or images depicting child sexual abuse. (21) For these types of crimes, evidence was necessarily digital. However, the increasing prevalence of technology and social media has led to the use of digital evidence in criminal cases more broadly: even if the conduct at issue took place offline, there may be online records central to the prosecution or defense's case. For example, location records that can be derived from a criminal defendant's cell phone may be crucial to establish an alibi (22)--or may support the prosecution's theory that the defendant was present at the scene of the crime. (23) A criminal defendant's online communications could bolster a claim of self-defense (24)--or show interactions that establish a criminal conspiracy. (25) As we increasingly rely on smartphones, personal computers, programmable home appliances, and other digital devices, digital evidence will continue to become more important in criminal cases. (26)

   In addition to its growing availability and relevance, digital evidence has also become more prominent because of its unparalleled level of detail and specificity. Social-media evidence serves as a telling example. Attorneys Justin P. Murphy and Adrian Fontecilla contrast social-media evidence with the information that can be derived from phone records:

   When a phone company responds to a government subpoena or search warrant, it may provide call or message logs. In contrast, when a social media company like Facebook responds to a government subpoena, it could provide the user's profile, wall posts, photos that the user uploaded, photos in which the user was tagged, a comprehensive list of the user's friends with their Facebook IDs, and a long table of login and IP data. (27) Additionally, as social-media companies have moved toward offering location-based services, they are also able to offer precise location information. (28)

   Given the wealth of information that can be gleaned from user accounts, it should come as no surprise that law-enforcement requests for information directed at online platforms have grown significantly over the past decade. Data published in social-media companies' transparency reports demonstrate that the number of requests for user information that Facebook, Google, and Twitter have received from the U.S. government has more than quadrupled over the past seven years--from under 50,000 total requests in 2013 to 226,301 requests in 2020. (29) These companies do not publicly release breakdowns categorizing specific types of requests; therefore, it is impossible to capture the precise number of requests issued specifically pursuant to criminal proceedings. However, Facebook notes that "[t]he vast majority of [government] requests relate to criminal cases," (30) while Google similarly confirms that "most [government] requests are issued in the context of criminal investigations." (31)

   The success rates of these requests are relatively high. In 2019, Facebook produced user data in 88% of cases, (32) Google produced data in 80.5% of cases, (33) and Twitter produced data in 66% of cases. (34) This data points towards a growing use of social-media evidence in criminal prosecutions.

   However, there has not been a comparable increase in access to social-media evidence on the part of criminal defendants. Of the three companies listed above, Twitter is the only company that publicizes data on requests for information from nongovernment entities. (35) The number of requests for information that Twitter receives from nongovernmental entities, which includes criminal defendants as well as civil litigants, (36) is strikingly lower than the number of requests the company receives from government entities. In 2020, for example, Twitter received 6,672 information requests from the U.S. government, and 137 nongovernment information requests from individuals or entities in the United States. (37) While these numbers are imprecise insofar as they speak to government and nongovernment requests generally as opposed to prosecution and defense requests specifically, these statistics nonetheless shed light on overall trends that are applicable to information requests in criminal proceedings.

   Furthermore, there is also a significant discrepancy between the success rates of requests from governmental and nongovernmental actors. Compared to the 59.5% of U.S. government requests for which Twitter produced information in 2020, Twitter produced information in response to only 10% of nongovernmental information requests within the United States, (38) While there have been minor fluctuations in success rates, the chasm between Twitter's response to governmental and nongovernmental actors has persisted. (39)

   There are several explanations both for the lower number of requests made by nongovernment actors and their lower success rates. This Note focuses on the...