Happily for me, Kashmir located a copy of the court order in question. It’s interesting to read Judge Kenny’s reasoning on this. He seems to indicate that the Stored Communications Act might unconstitutionally prevent the court from compelling Facebook to produce the messages in question:
The court has concluded that, in light of the court’s powers over inquiries into juror misconduct, it is unnecessary to determine whether the court could order disclosure of the documents –although it is likely that the court could do so –or whether the Act would unconstitutionally limit the right to a fair trial to the extent that it would bar access to the postings. A defendant has a Sixth Amendment right to fair trial, including an unbiased jury.
And, whatever may be said about the Electronic Communications Act, it is clear that the law was not intended to allow a juror to violate the court’s admonition to keep silent about a case and then claim that the Act made the very postings that violated the admonition private and unreachable.
Because the court has the power to subpoena reluctant jurors as part of an investigation of juror misconduct, Judge Kenny reasoned that he could therefore require the juror in this case to sign consent for Facebook to provide the postings to this court.
Having read the order, it really does seem a bit like a fishing expedition by defense counsel but by the same token, the court has an affirmative obligation to investigate juror misconduct.
So can a judge order a juror to consent to waiving federally protected privacy rights? After reading the order, it would seem like he can. It will be interesting to see how the juror’s attorney and Facebook respond. I would think that if the juror signs the consent, Facebook has no real choice but to provide the postings to the court for in camera review. Can the juror’s defense attorney block the order? I tend to doubt it now, but it will be interesting to follow this.