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There Are Ways Of Getting Access To Postings On Services Like Facebook

Juror Number One v. Superior Court
(Cal. Ct. of App., 3d Dist.), filed May 31, 2012 

Juror Number One was a juror in a criminal trial. The jury found the defendant guilty of the crime charged.

Following the conviction, the trial court learned that Juror Number One had posted one or more items on his Facebook account concerning the trial while it was in progress. This was in direct violation of an admonition by the court. The court conducted a hearing at which Juror Number One and several other jurors were examined about this and other claimed instances of misconduct. Following the hearing, the court entered an order requiring Juror Number One to execute a consent form pursuant to the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.), authorizing Facebook to release to the court an in camera review of all items he posted during the trial.

Juror Number One challenged the order.

The Court of Appeal concluded that the SCA is not applicable to the order at issue and Juror Number One otherwise failed to establish a violation of constitutional or privacy rights.

Under the SCA, the court could not order Facebook or any similar provider to produce copies of Juror Number One’s postings. However, Juror Number One could consent to Facebook producing them, in which event Facebook would have to do so. Since the trial court could order Juror Number One to produce documents in his possession, custody or control, it could order that juror to consent to Facebook’s disclosure of them.

As to Juror Number One’s constitutional challenges, the court ruled that although Juror Number One asserted constitutional rights, Juror Number One waived those challenges by failing to address them and cite authority in support of those challenges.