Subpoenaing Myspace & Facebook To Disclose Personal Information In Criminal Cases
Paul Wallin
April 27, 2009
WALLIN AND KLARICH ATTORNEY HAS STAY ORDERED BY COURT OF APPEAL WHEN TRIAL COURT REFUSES TO ORDER MYSPACE AND FACEBOOK TO TURN OVER RECORDS PURSUANT TO CRIMINAL DEFENSE LAW FIRM SUBPOENA
In a case of critical importance to California criminal defense attorneys (and those persons facing criminal charges) the Court of Appeal, Second Appellate District has recently granted a stay in response to a writ filed in a case that our law firm is handling in regards to whether MySpace and Facebook can be compelled to turn over records pursuant to a subpoena which is validly served by a criminal defendant in a pending criminal case.
As we all know when you are defending someone accused of a crime, in many cases it is essential to seek to find out as much as possible about the alleged victim or victims in a case. It has now become a key part of defense strategy to seek information from social networking websites such as MySpace and Facebook in an attempt to learn as much as possible about an alleged victim.
However, many social networking sites allow the subscriber to mark their profiles as "private" which means that unless the person has granted you "access" by identifying you as a friend you cannot gain access to their personal profile. The personal profile often contains vital information that can be used by the criminal defense attorney in defense of his client.
Until now Facebook and MySpace have declined to provide any documents pursuant to a validly service subpoena citing the language of the Federal Stored Communiciations Act. This act passed by Congress over 20 years ago, when the internet was in its infancy, appears to support the position taken by these social networking sites. There are no published opinions that have addressed this issue in a criminal case. Recently in a civil case, O´Grady vs. Superior Court (2006) 139 Cal App 45h, 1423 a California Court of Appeal upheld the right of social networking websites to refuse to comply with subpoenas for information.
Our clients writ which was filed on April 14, 2009 in the Second District Court of Appeals in Los Angeles points out that a criminal defendants constitutional rights must require that we be allowed to have the subpena's complied with and the documents turned over to the trial court for an in camera review to determine if the documents can be helpful to our defense. The Court of Appeals has stayed the trial and has ordered that the other parties in interest reply. We believe that this is a good sign and are hopeful that the court will conclude that when a defendant is facing serious felony criminal charges in California or anywhere else he or she must be allowed to subpoena potentially helpful evidence being held by Facebook and MySpace and similar social networking organizations.
If you would like more information about this important issue or would like a copy of our writ of mandate you can contact Wallin and Klarich at 877-466-5245 or go to wklaw.com for more information.
In a case of critical importance to California criminal defense attorneys (and those persons facing criminal charges) the Court of Appeal, Second Appellate District has recently granted a stay in response to a writ filed in a case that our law firm is handling in regards to whether MySpace and Facebook can be compelled to turn over records pursuant to a subpoena which is validly served by a criminal defendant in a pending criminal case.
As we all know when you are defending someone accused of a crime, in many cases it is essential to seek to find out as much as possible about the alleged victim or victims in a case. It has now become a key part of defense strategy to seek information from social networking websites such as MySpace and Facebook in an attempt to learn as much as possible about an alleged victim.
However, many social networking sites allow the subscriber to mark their profiles as "private" which means that unless the person has granted you "access" by identifying you as a friend you cannot gain access to their personal profile. The personal profile often contains vital information that can be used by the criminal defense attorney in defense of his client.
Until now Facebook and MySpace have declined to provide any documents pursuant to a validly service subpoena citing the language of the Federal Stored Communiciations Act. This act passed by Congress over 20 years ago, when the internet was in its infancy, appears to support the position taken by these social networking sites. There are no published opinions that have addressed this issue in a criminal case. Recently in a civil case, O´Grady vs. Superior Court (2006) 139 Cal App 45h, 1423 a California Court of Appeal upheld the right of social networking websites to refuse to comply with subpoenas for information.
Our clients writ which was filed on April 14, 2009 in the Second District Court of Appeals in Los Angeles points out that a criminal defendants constitutional rights must require that we be allowed to have the subpena's complied with and the documents turned over to the trial court for an in camera review to determine if the documents can be helpful to our defense. The Court of Appeals has stayed the trial and has ordered that the other parties in interest reply. We believe that this is a good sign and are hopeful that the court will conclude that when a defendant is facing serious felony criminal charges in California or anywhere else he or she must be allowed to subpoena potentially helpful evidence being held by Facebook and MySpace and similar social networking organizations.
If you would like more information about this important issue or would like a copy of our writ of mandate you can contact Wallin and Klarich at 877-466-5245 or go to wklaw.com for more information.