Facebook Inc. v. Daron Wint

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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.
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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.
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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).
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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
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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
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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.
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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
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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
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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.
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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
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“[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
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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.”).
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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
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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
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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
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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
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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
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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.