Facebook Inc. v. Daron Wint , 199 A.3d 625 ( 2019 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CO-958
FACEBOOK, INC., APPELLANT,
V.
DARON WINT, APPELLEE,
and
UNITED STATES, INTERVENOR.
On Appeal from the Superior Court
of the District of Columbia
(CF1-7047-15)
(Hon. Juliet J. McKenna, Trial Judge)
(Argued October 9, 2018 Decided January 3, 2019)
Joshua S. Lipshutz, with whom Michael Holecek, of the bar of the State of
California, pro hac vice, by special leave of court, Thomas Cochrane, of the bar of
the State of California, pro hac vice, by special leave of court, John K. Roche, and
Hayley L. Berlin were on the brief, for appellant.
Mikel-Meredith Weidman, Public Defender Service, with whom Samia Fam,
Jaclyn Frankfurt, and Alice Wang, Public Defender Service, were on the brief, for
appellee.
Lauren R. Bates, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman, Assistant United States Attorney,
were on the brief, for intervenor.
2
Before GLICKMAN and MCLEESE, Associate Judges, and FARRELL, Senior
Judge.
MCLEESE, Associate Judge: Appellant Facebook, Inc. filed an emergency
appeal from an order holding Facebook in civil contempt for refusing to comply with
subpoenas served by appellee Daron Wint. We previously issued a brief order
reversing the trial court’s order, and we now publish this opinion to more fully
explain our ruling.
I.
Mr. Wint was charged with murder in D.C. Superior Court. Before trial, he
filed an ex parte motion asking the trial court to authorize defense counsel to serve
subpoenas duces tecum on Facebook and a Facebook subsidiary for records,
including the contents of communications, relating to certain accounts. Facebook
objected, arguing that the Stored Communications Act (SCA), 18 U.S.C.A. §§ 2701-
12 (West 2018), prohibits Facebook from disclosing such information in response to
a criminal defendant’s subpoena. The trial court approved the subpoena request and
held Facebook in civil contempt for failing to comply.
3
II.
In the trial court, Mr. Wint argued that if the SCA were interpreted to preclude
Facebook from complying with the subpoenas at issue, then the SCA would be
unconstitutional. Mr. Wint has not renewed that argument in this court, however,
and that argument therefore is not before us. Rather, Mr. Wint has argued in this
court only that the SCA is properly interpreted to permit Facebook to comply. We
decide that issue of statutory interpretation de novo. Richardson v. United States,
927 A.2d 1137, 1138 (D.C. 2007). We first look to see whether the statutory
language at issue is “plain and admits of no more than one meaning.” Peoples Drug
Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)
(internal quotation marks omitted). We will give effect to the plain meaning of a
statute “when the language is unambiguous and does not produce an absurd result.”
McNeely v. United States, 874 A.2d 371, 387 (D.C. 2005) (internal quotation marks
omitted). “[W]e may also look to the legislative history to ensure that our
interpretation is consistent with legislative intent.” Thomas v. Buckley, 176 A.3d
1277, 1281 (D.C. 2017) (internal quotation marks omitted).
4
A.
The SCA broadly prohibits providers from disclosing the contents of covered
communications, stating that providers “shall not knowingly divulge to any person
or entity the contents” of covered communications, except as provided. 18 U.S.C.A.
§ 2702(a)(1). The SCA contains nine enumerated exceptions to this prohibition. 18
U.S.C.A. § 2702(b)(1)-(9). Mr. Wint does not rely on any of those exceptions, and
none of them applies in the present case. The plain text of the SCA thus appears to
foreclose Facebook from complying with Mr. Wint’s subpoenas.
The structure of the SCA points to the same conclusion. See generally, e.g.,
Frey v. United States, 137 A.3d 1000, 1004 (D.C. 2016) (“The [Supreme] Court
frequently takes Congress’s structural choices into consideration when interpreting
statutory provisions.”) (brackets and internal quotation marks omitted). Section
2702, titled “Voluntary disclosure of customer communications or records,” begins
with a general prohibition against disclosure and provides a number of exceptions to
the general prohibition. Section 2703, titled “Required disclosure of customer
communications or records,” sets out provisions pursuant to which governmental
entities may compel disclosure from service providers. Read together, §§ 2702 and
2703 appear to comprehensively address the circumstances in which providers may
5
disclose covered communications. Those circumstances do not include complying
with criminal defendants’ subpoenas.
Authority from other jurisdictions also favors a plain-language reading of the
SCA. As far as we have determined, every court to consider the issue has concluded
that the SCA’s general prohibition on disclosure of the contents of covered
communications applies to criminal defendants’ subpoenas. United States v. Pierce,
785 F.3d 832, 842 (2d Cir. 2015) (“[T]he SCA provides that a governmental entity
may require electronic communication service and remote computing service
providers to disclose the contents of wire and electronic communication . . . . The
SCA does not, on its face, permit a [criminal] defendant to obtain such
information.”) (brackets and internal quotation marks omitted); State v. Bray, 422
P.3d 250, 256 (Or. 2018) (“A person like defendant, who is a nongovernmental
entity, cannot require a remote computing service . . . to divulge the contents of
communications.”); Facebook, Inc. v. Superior Court, 417 P.3d 725, 727 (Cal. 2018)
(SCA declares “as a general matter [that service providers] may not disclose stored
electronic communications except under specified circumstances . . . or as
compelled by law enforcement entities”); State v. Johnson, 538 S.W.3d 32, 70
(Tenn. Crim. App. 2017) (stating that “defendants cannot obtain . . . witnesses’
electronic communications directly from the social media providers” under the
6
SCA); United States v. Nix, 251 F. Supp. 3d 555, 559 (W.D.N.Y. 2017) (SCA “does
not permit a defendant in a criminal case to subpoena the content of a Facebook or
Instagram account”); United States v. Wenk, 319 F. Supp. 3d 828, 829 (E.D. Va.
2017) (“[T]he [SCA] does not contain a provision detailing the methods with which
criminal defendants can require disclosure . . . .”). Courts have uniformly reached
the same conclusion in the context of civil subpoenas on behalf of private litigants.
E.g., Suzlon Energy Ltd. v. Microsoft Corp., 671 F.3d 726, 728 (9th Cir. 2011); PPG
Indus., Inc. v. Jiangsu Tie Mao Glass Co., 273 F. Supp. 3d 558, 560-61 (W.D. Penn.
2017) (collecting cases).
B.
The foregoing considerations provide strong support for the conclusion that,
barring an applicable statutory exception, the SCA prohibits providers from
disclosing covered communications in response to criminal defendants’ subpoenas.
Mr. Wint, however, presses an alternative interpretation of § 2702. According to
that interpretation, § 2702 addresses only the circumstances in which providers may
voluntarily disclose covered communications and does not address compliance with
court-ordered disclosures, such as subpoenas. In support of this interpretation, Mr.
7
Wint relies on six principal contentions. Although some of Mr. Wint’s contentions
have some force, on balance we are not persuaded by Mr. Wint’s argument.
1.
Mr. Wint argues that § 2702’s seemingly unqualified general prohibition of
disclosure should be read as limited to the context of voluntary disclosure, as
reflected in the section’s current title: “Voluntary disclosure of customer
communications or records.” Mr. Wint’s argument on this point has several
important weaknesses.
First, titles are of limited utility when weighed against plain statutory
language. Cherry v. District of Columbia, 164 A.3d 922, 928 (D.C. 2017) (“The
significance of the title of [a] statute should not be exaggerated . . . . It cannot limit
the plain meaning of the text.”) (brackets and internal quotation marks omitted); see
generally, e.g., Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-
29 (1947) (“[H]eadings and titles are not meant to take the place of the detailed
provisions of the text. Nor are they necessarily designed to be a reference guide or
a synopsis. Where the text is complicated and prolific, headings and titles can do no
more than indicate the provisions in a most general manner; to attempt to refer to
8
each specific provision would often be ungainly as well as useless. As a result,
matters in the text which deviate from those falling within the general pattern are
frequently unreflected in the headings and titles. Factors of this type have led to the
wise rule that the title of a statute and the heading of a section cannot limit the plain
meaning of the text.”).
Second, § 2702’s current title must be read in conjunction with § 2703’s
current title (“Required disclosure of customer communications or records”), as well
as with the text of both sections. As explained above, those provisions and their
respective titles are most naturally read together to comprehensively address the
circumstances in which providers may make voluntary or required disclosures under
the SCA.
Third, § 2702’s current title was added in 2001, when Congress amended the
SCA to allow disclosure in cases involving immediate danger of death or serious
physical injury. USA PATRIOT ACT of 2001, Pub. L. No. 107-56, § 212, 115 Stat.
272, 284. The 2001 amendments otherwise did not substantially alter the scope of
the SCA regarding disclosure of contents of covered communications. Id. Thus, if
one were looking to draw inferences about § 2702’s intended scope from the
section’s title, the section’s original title would seem to be stronger evidence. That
9
original title was worded generally: “Disclosure of contents.” Electronic
Communications Privacy Act of 1986, Pub. L. No. 99-508, § 201, 100 Stat. 1848,
1860. Section 2702’s original title thus undermines rather than supports Mr. Wint’s
contention that § 2702’s broad prohibition is limited to voluntary disclosures.
2.
Mr. Wint points out that the exceptions in § 2702 are prefaced by the words
“may divulge.” 18 U.S.C.A. § 2702(b), (c). At least initially, Mr. Wint contended
that “may” is a permissive term and that all of the exceptions in § 2702 therefore
relate to voluntary rather than compelled disclosures. To the contrary, however,
§ 2702’s list of exceptions includes some voluntary disclosures and some disclosures
that are required by other provisions of law. Compare, e.g., 18 U.S.C.A.
§ 2702(b)(1) (permitting disclosure to intended recipient of communication), with,
e.g., 18 U.S.C.A. § 2702(b)(2) (permitting disclosure pursuant to 18 U.S.C.A.
§ 2703, which specifies various circumstances in which providers are required to
make disclosures). Mr. Wint ultimately does not appear to dispute that some of
§ 2702’s listed exceptions require disclosure rather than simply permitting voluntary
disclosure. The text of § 2702 thus undermines rather than supports Mr. Wint’s
argument that § 2702 should be understood as limited to voluntary disclosures.
10
3.
As Mr. Wint notes, the SCA’s legislative history does not appear to contain
any explicit reference to subpoenas by criminal defendants. Mr. Wint thus argues
that the SCA should not be interpreted to reach such subpoenas. We are given pause
by this point, because we agree with Mr. Wint that precluding criminal defendants’
subpoenas to providers was a significant step and that the legislative history of the
SCA thus could reasonably be expected to have mentioned the issue. As the
Supreme Court explained in a different context, however, “[i]t is not the law that a
statute can have no effects which are not explicitly mentioned in its legislative
history, and the text of the present statute plainly embraces criteria of more general
application.” Pittston Coal Grp. v. Sebben, 488 U.S. 105, 115 (1988); see also, e.g.,
Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1143 (2018) (“[S]ilence in the
legislative history, no matter how clanging, cannot defeat the better reading of the
text and statutory context.”) (internal quotation marks omitted).
Moreover, the SCA’s legislative history does indicate that the prohibition on
disclosure was meant to be comprehensive, except as specifically provided. For
example, the section-by-section analysis of the SCA in the House Report states that
11
“[p]roposed section 2702 provides general prohibitions on the disclosure of
contents,” and “[t]his provision is aimed at proscribing the disclosure of stored wire
and electronic communications,” with subsection (b) containing “the exceptions to
this general rule.” H.R. Rep. No. 99-647, at 64 (1986). Similarly, the Senate Report
states that “section 2702(a) generally prohibits the provider of a wire or electronic
communication service to the public from knowingly divulging the contents of any
communication while in electronic storage by that service to any person other than
the addressee of intended recipient,” and “[s]ubsection (b) of this new section
provides exceptions to the general rule of nondisclosure provided in subsection (a).”
S. Rep. No. 99-541, at 37 (1986).
4.
Mr. Wint argues that it makes little sense as a matter of policy to interpret the
SCA to prohibit providers from disclosing covered communications in response to
criminal defendants’ subpoenas, because criminal defendants can seek the same
information from others, such as the sender or a recipient. Mr. Wint is correct that
the SCA does not prohibit subpoenas directed at senders or recipients rather than
providers. 18 U.S.C.A. §§ 2701-12. It does not follow, however, that the protections
of the SCA lack importance. To the contrary, channeling such discovery to senders
12
or recipients, rather than providers, increases the chances that affected individuals
can assert claims of privilege or other rights of privacy before covered
communications are disclosed to criminal defendants in response to subpoenas. Cf.,
e.g., Fed. R. Crim. P. 17(c)(3) (generally requiring prior judicial approval and notice
to victim before service of subpoena to third party seeking “personal or confidential
information about a victim”); 2 Charles Alan Wright et al., Federal Practice and
Procedure § 275 (4th ed. 2018) (“The rationale for prior judicial approval is that
third parties who receive subpoenas for information about victims do not have the
same incentive to challenge [the subpoenas], and the victim may be unaware of the
subpoena for his personal or confidential information.”). A plain-language reading
of the SCA therefore advances a significant interest and does not lead to irrational
or absurd results. O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 88 (Ct. App.
2006) (“[I]t would be far from irrational for Congress to conclude that one seeking
disclosure of the contents of email, like one seeking old-fashioned written
correspondence, should direct his or her effort to the parties to the communication
and not to a third party who served only as a medium and neutral repository for the
message.”).
13
5.
As Mr. Wint notes, §§ 2702 and 2703 do not specifically refer to criminal
defendants’ subpoenas. Thus, Mr. Wint argues, the SCA does not speak with the
clarity that is required before a provision should properly be interpreted as curtailing
criminal defendants’ constitutional right to use subpoenas to obtain evidence for
trial.
We agree with Mr. Wint that “[t]o ensure that justice is done, it is imperative
to the function of courts that compulsory process be available for the production of
evidence needed either by the prosecution or by the defense,” and that “exceptions
to the demand for every man’s evidence are not lightly created nor expansively
construed, for they are in derogation of the search for truth.” United States v. Nixon,
418 U.S. 683, 709-10 (1974); see also Freeman v. Seligson, 132 U.S. App. D.C. 56,
78, 405 F.2d 1326, 1348 (1968) (“In the absence of a specific prohibition against
disclosure in judicial proceedings, such as Congress set forth in some statutes, clear
and strong indication is required before it may be implied that the policy of
prohibition is of such force as to dominate the broad objective of doing justice.”).
Courts, however, have appropriately rejected the theory that general language
14
precluding disclosure will never suffice to preclude disclosure in response to
subpoenas, and that only a specific statutory reference to subpoenas will suffice.
See, e.g., Baldrige v. Shapiro, 455 U.S. 345, 360-61 (1982) (holding that federal
statute generally prohibiting disclosure of certain census data did not contain implicit
exception for civil discovery); Cazorla v. Koch Foods of Miss., LLC, 838 F.3d 540,
551 (5th Cir. 2016) (“[I]t is unclear why a provision broadly barring any ‘disclosure’
would have to specify ‘including in discovery’ in order to have effect.”); In re
England, 363 U.S. App. D.C. 29, 37-38, 375 F.3d 1169, 1177-78 (2004) (holding
that plain language of statute stating that proceedings of selection board “may not
be disclosed to any person not a member of the board” barred disclosure in response
to civil discovery; “There is no inherent ambiguity in the phrase ‘may not be
disclosed’ that would justify departing from those plain terms pursuant to a
judicially-crafted exception.”).
Although the SCA does not specifically address criminal defendants’
subpoenas, it does specifically and repeatedly address disclosures in response to
subpoenas and other court orders. 18 U.S.C.A. § 2703(b)(1)(B), (c)(1)(A), (c)(2),
(d), (e), (h)(2). Congress thus necessarily considered the issue of disclosures based
on court orders, including orders during discovery, determining that disclosure was
generally prohibited under the SCA but was permissible pursuant to court order in
15
certain specified settings. Criminal defendants’ subpoenas were not included by
Congress in the list of exceptions, which tends to support a conclusion that Congress
did not intend to permit disclosure in response to criminal defendants’ subpoenas.
See, e.g., O’Grady, 44 Cal. Rptr. 3d at 86 (declining to infer civil-subpoena
exception to SCA’s nondisclosure provision; “Few cases have provided a more
appropriate occasion to apply the maxim expressio unius exclusio alterius est, under
which the enumeration of things to which a statute applies is presumed to exclude
things not mentioned.”). See generally United States v. Johnson, 529 U.S. 53, 58
(2000) (“When Congress provides exceptions in a statute, it does not follow that
courts have authority to create others. The proper inference, and the one we adopt
here, is that Congress considered the issue of exceptions and, in the end, limited the
statute to the ones set forth.”). For that reason and the other reasons stated in this
opinion, we conclude that the SCA speaks with sufficient clarity to the question
whether providers can disclose covered communications in response to criminal
defendants’ subpoenas.
In support of the contrary conclusion, Mr. Wint relies heavily on Freeman,
132 U.S. App. D.C. 56, 405 F.2d 1326, but Freeman is readily distinguishable.
Freeman involved a statutory prohibition against “publishing,” not disclosure, and
the court determined that permitting disclosure in response to subpoenas was
16
contrary neither to the language of the statutory prohibition nor to the congressional
concern with “widespread dissemination” of the information at issue. 132 U.S. App.
D.C. at 78-79, 405 F.2d at 1348-49.
6.
We finally address Mr. Wint’s reliance on the doctrine of constitutional
avoidance. Mr. Wint argues that criminal defendants have a constitutional right to
obtain evidence for trial and that this court therefore should reject a reading of the
SCA that would preclude providers from complying with criminal defendants’
subpoenas. “Whether rooted directly in the Due Process Clause, or in the
Compulsory Process or Confrontation [C]lauses of the Sixth Amendment, the
Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense.” McDonald v. United States, 904 A.2d 377, 380 (D.C. 2006)
(ellipsis and internal quotation marks omitted). The compulsory-process right,
however, is “not unlimited.” Grady v. United States, 180 A.3d 652, 657 n.4 (D.C.
2018). In determining whether a given limitation on access to evidence
impermissibly interferes with a defendant’s right to present a defense, courts
consider, among other things, whether the defendant “needs the evidence to conduct
his defense” and whether “there are no alternative means of getting at the same
17
point.” Anderson v. United States, 607 A.2d 490, 496 (D.C. 1992) (internal
quotation marks omitted). We are not persuaded by Mr. Wint’s reliance on the
doctrine of constitutional avoidance in this case.
First, the doctrine “of constitutional avoidance is an interpretive tool,
counseling that ambiguous statutory language be construed to avoid serious
constitutional doubts.” Mack v. United States, 6 A.3d 1224, 1233-34 (D.C. 2010)
(internal quotation marks omitted); see also, e.g., Salinas v. United States, 522 U.S.
52, 60 (1997) (declining to rely on doctrine of avoidance because text of statute in
question was “unambiguous on the point under consideration”). Because we find
the SCA to be unambiguous on the point at issue in this case, we see no basis for
applying the doctrine of avoidance.
Moreover, we do not consider Mr. Wint to have established a serious
constitutional doubt warranting application of the doctrine. As previously noted,
Mr. Wint acknowledges that covered communications can be sought through
subpoenas directed at entities other than providers, such as recipients and senders.
Mr. Wint nevertheless contends that direct subpoenas to providers are the easiest
method for obtaining covered communications, and that other approaches are
cumbersome, time-consuming, and more likely to be ineffective. It is of course
18
possible that in a given case the limitations imposed by the SCA could impermissibly
interfere with a criminal defendant’s right to compulsory process. The SCA,
however, has been in effect for more than thirty years. With the exception of the
trial court’s ruling in this case, we are aware of no decision that has permitted
criminal defendants to subpoena providers for covered communications in the
absence of an applicable statutory exception. Nevertheless, again with the exception
of the trial court’s ruling in this case, we have found no decision concluding that the
SCA’s general prohibition of disclosure pursuant to criminal defendants’ subpoenas
violated, or even raised a serious problem for, a criminal defendant’s right to
compulsory process. As to the trial court’s ruling in this case, Mr. Wint has not
argued in this court that he has a constitutional right to enforcement of the subpoenas
at issue, and we therefore have no occasion to address that issue.
In sum, we conclude that Mr. Wint has not established the existence of a
serious constitutional doubt that could warrant application of the doctrine of
avoidance.