Feb 062011
 February 6, 2011  Posted by  Court, Featured News, Online, Surveillance

Yesterday I posted a news story by Andy Furillo that appeared in the Sacramento Bee. A judge’s order concerning a juror’s Facebook posts had left me with a “gut” reaction that something was not right with the order. The text of the order itself does not seem to be available online.

Furillo explains:

The Facebook fight under way in a Sacramento courtroom pivoted into new territory Friday when a judge gave a juror 10 days to turn over postings he made during a gang beating trial last year or face possible jail time.


Friday’s hearing had shaped up as a constitutional contest between Facebook and defense lawyers for reputed members of the so-called Killa Mobb gang who said their clients needed the postings to make sure the juror wasn’t biased when he voted to convict them. Facebook countered that the disclosure was precluded by federal computer privacy law.

Kenny short-circuited the constitutional battle with his order Friday that the juror – who was not present in the packed courtroom – allow Facebook to make the postings available for judicial review in chambers. The federal Stored Communications Act allows for such disclosure if the individual party agrees to it, if it is requested by law enforcement agencies investigating a crime or by court orders in ongoing criminal investigations.

What I couldn’t understand is this:   ordering the juror to consent to a waiver of his right to privacy under the Stored Communications Act (SCA) seems like an egregious end-run around the SCA. I see an inherent threat here, i.e., consent to waiving your federally protected privacy or you may be held in contempt of court and fined or jailed.

As I subsequently noted on Tweeter, I can understand the importance of clearing this matter up so that sentencing can proceed against five gang members who may be facing life sentences. I can understand their lawyers’ zealousness to try to uncover any evidence that a juror was influenced or biased if that might result in overturning their clients’ conviction. But does that justify such means to that end?

In addition to posting my question on the blog entry, I tweeted:

A court can *order* someone to sign consent to waive their rights under #SCA or face jail? How is that “consent?”

Despite what seemed disturbing to me, two individuals on Twitter who actually have a background in law did not share my level of concern about the judge’s actions. One person helpfully pointed me to the decision in O’Grady at p. 21, while another, bmaz of FireDogLake.com, responded over a series of tweets, including:

I dunno; I don’t have a problem w/court ordering in camera inspection as juror was contemptuous of instruction to not discuss


I think posting anything at all was violation of instruction sufficient to warrant in camera inspection to determine status


The court has broad contempt powers and has made a finding of necessity+given the parties due process on the issue


It looks goofy, but how is this less protection than issuance of subpoena or search warrant? Appears is prob cause

Well, I’m not lawyer but it seems to me that it’s less protection because it’s giving the juror a Hobson’s choice: either consent to waiving right to privacy under the SCA or face contempt charges. And I didn’t see enough in the news story to suggest to me that the defense counsel or court had sufficient evidence to reach a probable cause standard. Did they have grounds for reasonable suspicion that he made some posts? Yes, but that’s as far as their showing seems to go.

So I emailed John Wesley Hall of FourthAmendment.com to ask him his take on the news story and situation. John replied by e-mail and gave me permission to quote him:

To order “consent” seems like an admission that there is no probable cause or other reason to use the mechanics of the law to get the information.

I can see the potential need to get the information, but what actually shows the need? Did somebody have a print out of the page? What was allegedly said that set this off? Is it just a fishing expedition? That’s what it
looks like to me.

The S.Bee article doesn’t say a word about bias, just that he maybe violated the court’s order not to talk about it. To say that it is “boring” probably was true, but that doesn’t mean he was biased, and it wouldn’t have been enough to get the juror kicked off the jury during the trial, just admonished, maybe, maybe not. There are cases about Facebook posts screwing up trials. I did an ABA Journal search on that once for a judge who was going to do a training session for judges on the risks of Internet postings, and found about eight articles in ten minutes.

So, it doesn’t fit the SCA because there’s no criminal investigation. It looks to me that the juror can stand on his or her privacy and I don’t think the contempt will be supportable.

In a follow-up email, John also noted that in his opinion, “the judge’s order likely violates the Fourth Amendment.”

Well, I am relieved to know that at least one lawyer sees some of the concerns I expressed. I hope other lawyers will blog about this issue and that this type of situation is discussed when Congress renews its consideration of ECPA reform.

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