Facebook, Inc. v. Superior Court ( 2020 )


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  •         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
    1
    FACEBOOK, INC. v. SUPERIOR COURT
    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
    2
    FACEBOOK, INC. v. SUPERIOR COURT
    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
    3
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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
    4
    FACEBOOK, INC. v. SUPERIOR COURT
    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.
    5
    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
    6
    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
    Opinion of the Court by Cantil-Sakauye, C. J.
    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
    8
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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
    9
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    (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.
    10
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.
    11
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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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    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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
    13
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.
    14
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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
    ,
    15
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.
    16
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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.)
    18
    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.”
    19
    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,
    21
    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.
    28
    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.
    32
    FACEBOOK, INC. v. SUPERIOR COURT
    Opinion of the Court by Cantil-Sakauye, C. J.
    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  (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
    .
    16
    Facebook, Data 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  (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
    .) 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  (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