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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CV-0239
META PLATFORMS, INC., APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2021-CA-004450-2)
(Hon. Anthony C. Epstein, Trial Judge)
(Argued January 31, 2023 Decided September 14, 2023)
Catherine M.A. Carroll, with whom Ronald C. Machen, George P. Varghese,
Ari Holtzblatt, and Joshua S. Lipshutz were on the brief, for appellant.
Ashwin P. Phatak, Principal Deputy Solicitor General, with whom Karl A.
Racine, Attorney General for the District of Columbia at the time, Caroline S. Van
Zile, Solicitor General, and Stacy L. Anderson, Senior Assistant Attorney General,
were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, DEAHL, Associate Judge, and
STEADMAN, Senior Judge.
Opinion for the court by Associate Judge DEAHL.
Concurring opinion by Associate Judge DEAHL at page 42.
2
DEAHL, Associate Judge: The District has subpoenaed Meta Platforms, the
operator of the social media site Facebook, for documents related to Meta’s
enforcement of its COVID-19 misinformation policies. The District is investigating
potential violations of the Consumer Protection Procedures Act, or CPPA, D.C.
Code §§ 28-3901 to -3913, alleging that Meta has misrepresented to the District’s
consumers the degree to which it polices misinformation posted to its platform about
the COVID-19 vaccine. Meta refused to comply with the subpoena, and the Superior
Court issued an order enforcing the subpoena. Meta now appeals that order.
Meta raises two arguments in support of its view that the District’s subpoena
is unenforceable. Its first argument concerns the Stored Communications Act, or
SCA, 18 U.S.C. §§ 2701 to 2711. Meta argues that § 2703 of the SCA requires the
District to procure a warrant in order to compel the disclosure of the documents it
seeks. Its second argument is grounded in the Constitution. Meta argues that the
District’s subpoena infringes on both its and its users’ First Amendment rights to
free speech and free association. Like the trial court, we disagree with Meta as to
both points, and affirm.
3
I.
Superior Court Proceedings
This case arises from an ongoing investigation by Attorney General for the
District of Columbia into Meta’s content moderation practices. Throughout the
COVID-19 pandemic, Meta made various public statements about its efforts to
police the spread of misinformation on its platform. In December 2020, for example,
the company announced that it would be “remov[ing] false claims that COVID-19
vaccines contain microchips, or anything else that isn’t on the official vaccine
ingredient list.” Several months later, Meta unveiled an expansion of this policy,
noting “a particular focus on pages, groups, and accounts that violate these rules.”
By August 2021, Meta reported that these efforts had led to the removal of 20 million
items of content and over 3,000 accounts, pages, and groups for repeat violations.
The District, perceiving a mismatch between these public statements and the
widespread dissemination of vaccine misinformation on Facebook, is investigating
Meta’s potential violations of the CPPA. That statute, which prohibits unfair and
deceptive trade practices, authorizes the District to conduct “investigation[s] to
determine whether to seek relief under” its provisions, including by issuing
subpoenas to “compel production of records, books, papers, contracts, and other
4
documents.” D.C. Code § 28-3910(a). Relying on this authority, the District issued
a subpoena demanding the production of the following:
Documents sufficient to identify all Facebook groups,
pages, and accounts that have violated Facebook’s
COVID-19 misinformation policy with respect to content
concerning vaccines, including the identi[t]y of any
individuals or entities associated with the groups, pages,
and accounts; the nature of the violation(s); and the
consequences imposed by Facebook for the violation,
including whether content was removed or banned from
these sources.
This demand was eventually narrowed to only those documents related to public
posts, or posts that were so widely accessible as to be functionally public. 1
Meta refused to comply with the subpoena, and so the District brought an
enforcement action in Superior Court. In that litigation, Meta principally argued that
the government may compel the production of electronic communications only by
procuring a warrant, citing to a provision of the SCA, 18 U.S.C. § 2703(a). The trial
court disagreed with that reading of the statute. It instead reasoned that because the
1
It is difficult to say exactly when a post to a nominally private Facebook
group or Page has been so broadly disseminated that it is effectively public. The
trial court charged Meta and the District with reaching an “agreement on an approach
that identifies public posts in a way that protects non-public posts from disclosure
and that does not impose an undue burden on Meta.” Neither party challenges that
aspect of the trial court’s order, so we do not opine on any theoretical threshold for
when a post on the internet becomes functionally public.
5
District is targeting only public posts, the SCA’s “consent exception,” § 2702(b)(3),
permitted Meta to make the disclosures, and Meta was therefore required to comply
with the District’s valid subpoena (more on these provisions in a moment). Meta
also raised a First Amendment challenge to the subpoena, arguing that compelling it
to disclose the targeted documents would chill both its and its users’ First
Amendment rights of free speech and association. The court again disagreed,
concluding that the subpoena did not infringe upon either Meta’s or its users’ First
Amendment rights.
Meta now appeals, pressing the same two arguments that it raised before the
trial court. First, it argues that the SCA precludes the government from compelling
disclosure of the targeted documents via subpoena, as the SCA requires it to instead
procure a warrant. Second, it argues that the subpoena violates its and its users’ First
Amendment rights of free speech and association. We address Meta’s statutory
argument concerning the proper interpretation of the SCA first, and then turn to its
First Amendment challenges.
II.
The proper interpretation of the SCA is a question of law we review de novo.
Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019).
6
A. Background of the Stored Communications Act
Congress passed the SCA in 1986 to fill a perceived hole that technological
advances had poked in the Fourth Amendment’s protections of private
communications and records. For most of our country’s history, people typically
kept their private communications and records in their homes or places of business,
and the government generally needed a warrant supported by probable cause to seize
those materials. See Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (the
Fourth Amendment’s warrant requirement is “subject only to a few specifically
established and well delineated exceptions”).
The advent of email and other forms of electronic communications and
storage changed that, and raised serious questions about the Fourth Amendment’s
applications to these new technologies. Electronic communications typically must
be disclosed to third-party service providers, who then transmit messages to their
intended recipients. Those third-party service providers might themselves disclose
the communications to the government, offering a potentially massive end run on
the Fourth Amendment’s protections of private materials. See United States v.
Miller, 425 U.S. 435, 443 (1976) (“[T]he Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and conveyed by [them] to
7
Government authorities.”). But see Carpenter v. United States, 138 S. Ct. 2206,
2217 (2018) (declining to extend Miller to cell-site location information a person
reveals to their wireless carrier). 2
The SCA sought to fill that potential gap by providing “a set of Fourth
Amendment-like privacy protections by statute,” limiting “the ability of [service
providers] to voluntarily disclose information about their customers and subscribers
to the government.” Orin S. Kerr, A User’s Guide to the Stored Communications
Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1212-
13 (2004). Two of the SCA’s provisions are particularly crucial to this appeal.
First is § 2702, which precludes service providers from disclosing their users’
communications or records, subject to certain exceptions. Section 2702 states that
the provider of an “electronic communication service” may not knowingly divulge
“the contents of a communication while in electronic storage by that service.” 18
2
To be clear, we do not express any view about whether there is in fact any
gap in the Fourth Amendment’s protections of electronic communications. Courts
are capable of adapting doctrinal rules to fit technological advances, but are often
slow to do so. The SCA was simply Congress’s attempt to address the gap it
perceived.
8
U.S.C. § 2702(a)(1). 3 The provision then lists nine exceptions to that general
prohibition, including: disclosures “to an addressee or intended recipient of” the
communication, id. § 2702(b)(1); disclosures “with the lawful consent of the
originator or an addressee or intended recipient of” the message, id. § 2702(b)(3);
and disclosures “as otherwise authorized in [§ 2703],” discussed immediately below.
Id. § 2702(b)(2). Section 2702(a) “broadly prohibits providers from disclosing the
contents of covered communications.” Wint, 199 A.3d at 628. But when one or
more of the nine § 2702(b) exceptions apply, we have held that “the SCA is no
obstacle” to compelling disclosure of communications via ordinary legal process,
like subpoenas. Facebook, Inc. v. Pepe, 241 A.3d 248, 253 (D.C. 2020).
Second is § 2703, which confers on government entities alone the power to
compel disclosure of electronic communications and records, even when no
§ 2702(b) exception applies. The SCA grants private parties no similar authority.
Under § 2703, the government may compel via court order a narrow set of non-
3
The SCA’s strictures apply to both providers of “electronic communication
services” and “remote computing services.” See 18 U.S.C. § 2510(15) (defining
“electronic communication service”), and § 2711(2) (defining “remote computing
service”); see also id. § 2702(a)(2) (directed at remote computing services). For our
purposes, the differences between these types of services are immaterial, and we
refer generally to “service providers.” Cf. Kerr, User’s Guide, 72 Geo. Wash. L.
Rev. at 1209 (advocating for “eliminating the[se] confusing categories”).
9
content records, including a subscriber or customer’s name, address, and means of
payment. 18 U.S.C. § 2703(c)(2), (d). As for the contents of electronic
communications, like the text of an email, the statutorily required process for
government-compelled disclosure depends on how long the communication has
been in electronic storage. When it has been in storage for more than 180 days,
§ 2703(b) permits the government to compel its disclosure so long as it provides
prior notice to the user and obtains an administrative subpoena or court order
provided for in § 2703(d). But when the communication has been in storage for 180
days or less, the SCA authorizes the government to compel disclosure “only pursuant
to a warrant.” Id. § 2703(a). 4
B. Wint, Pepe, and the Parties’ Competing Readings of the SCA
We have interpreted these provisions twice before, and both cases are
important here. We first addressed them in Facebook v. Wint, where we held that
4
The District does not invoke the SCA’s more permissive processes for
obtaining communications that are “more than one hundred and eighty days” old, 18
U.S.C. § 2703(b), (d), and Meta suggests that is because the 180-day line has
effectively been abandoned through practice and case law. Whatever the reason, we
proceed here as if the District is seeking materials that have been electronically
stored for 180 days or less, even though that would seem not to be true of the vast
bulk of materials that the District seeks.
10
§ 2702(a)’s “broad prohibition” on disclosure precludes a service provider from
complying with a criminal defendant’s subpoena seeking protected communications.
199 A.3d at 629-30. None of the statutory exceptions permitting disclosure applied
in that case, and we concluded that “barring an applicable statutory exception, the
SCA prohibits providers from disclosing covered communications,” even when
subpoenaed by a private party. Id. at 629.
We next addressed these provisions in Facebook v. Pepe, where unlike Wint,
statutory exceptions did apply to permit the service provider to disclose the
subpoenaed communications. 241 A.3d 248, 256 (D.C. 2020). Nonetheless,
Facebook opted not to comply with the criminal defendant’s subpoena in that case,
highlighting statutory language providing only that it “may divulge” electronic
communications when such an exception applies, rather than requiring it to do so.
Id. at 257-58 (emphasis added). We disagreed and held that Facebook was required
to comply with the subpoena where nothing in the SCA precluded it from doing so.
Id. at 258. In short, because “the SCA did not authorize Facebook’s refusal to
comply with Mr. Pepe’s subpoena,” Facebook was subject to “disclosure
requirements imposed by other law.” Id. at 258.
11
The present case, like Pepe, involves communications that are exempted from
the SCA’s broad prohibition on disclosure. Meta does not dispute that the SCA
permits it to comply with the District’s subpoena, because the District seeks only
publicly posted messages, which the parties agree fit within the SCA’s consent
exception to overcome the general bar on disclosure. 18 U.S.C. § 2702(b)(3). But
see infra at 42-44 (Deahl, J., concurring) (questioning exception’s application).
The parties offer competing theories about how §§ 2702 and 2703 should be
read together and applied in this case. The District contends that Pepe’s reasoning
applies with full force here, and the same result—that Meta must comply with the
subpoena—follows. Recall that Pepe held that so long as some § 2702(b) exception
to § 2702(a)’s general bar on disclosure applies, private parties can avail themselves
of whatever avenues of compulsory process they have available to them, and service
providers must comply with such valid process. 241 A.3d at 258. The District
maintains that the same is true when a government actor subpoenas documents. In
its view, § 2702(a)’s general prohibition on disclosure does not bar compliance with
its subpoena because the users have consented to the disclosure of their
communications by publicly posting them. See 18 U.S.C. § 2702(b)(3). And as in
Pepe, the District has authority independent of the SCA to “compel production of
records” that it seeks: the CPPA. See D.C. Code § 28-3910. Thus, Meta must
12
comply with the subpoena. The Superior Court adopted essentially this reasoning,
positing that “[n]othing in the text of § 2702(b)(3) limits the consent exception to
disclosure to non-governmental entities.”
Meta counters that Pepe is inapplicable because the SCA applies an entirely
different set of restrictions when it is the government, rather than a private party,
seeking to compel disclosures. Meta contends that Pepe and the § 2702 exceptions
are inapposite in light of § 2703’s directive that “[a] governmental entity may require
the disclosure . . . of the contents of a wire or electronic communication . . . only
pursuant to a warrant.” 18 U.S.C. § 2703(a) (emphasis added). This portion of the
statute, it argues, imposes additional hurdles on government entities seeking
electronic communications beyond those found in § 2702, and the trial court blurred
the distinction between the two provisions when it granted the District’s petition to
enforce its subpoena. If the District or any other government entity wants access to
these records, Meta concludes, it has no option but to comply with § 2703’s warrant
requirement.
We agree with the District’s reading of the statute. The text and structure of
the SCA support the District’s interpretation, as we explain in Part II.C. The Act’s
legislative history also supports that interpretation, as we explain in Part II.D.
13
C. The SCA’s Text and Structure
We begin with the text of the statute, which is “generally the best indication
of the legislative intent.” In re B.B.P., 753 A.2d 1019, 1021 (D.C. 2000). As an
initial matter, the District argues that the SCA does not apply to public posts at all,
but instead applies only “to protect information that the communicator took steps to
keep private.” Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659,
668 (D.N.J. 2013). It might be right about that. 5 See infra at 44-47 (Deahl, J.,
concurring). But see Facebook, Inc. v. Superior Court (Hunter), 417 P.3d 725, 743-
44 (Cal. 2018) (concluding that the SCA “initially prohibits the disclosure of all
(even public) communications—but that section 2702(b)(3)’s subsequent lawful
5
As the District points out, the SCA’s proscriptions of the unauthorized access
and interception of electronic communications do not extend to “electronic
communication[s that are] readily accessible to the general public.” 18 U.S.C.
§ 2511(2)(g)(i); see id. § 2701. Meta counters that we are not concerned here with
the unauthorized access or interception of electronic communications, but with
disclosures of electronic communications, which are covered by different
provisions: §§ 2702 and 2703. Meta’s response is well-taken, but it is not wholly
satisfactory. It would be a rather strange statutory regime if the SCA permitted the
government (and anybody else) to “intercept” and “access” any and all public posts,
while prohibiting the government from compelling disclosure of the exact same
material absent a warrant (as Meta’s reading of the statute would dictate). And at a
broader level, it would be odd if a statutory regime meant to mimic the Fourth
Amendment’s protections swept so much more broadly than the Fourth Amendment
itself, and protected communications that had been broadcast to the world. See infra
at Part II.D.2. We ultimately do not resolve this broader dispute between the parties,
and will assume, without deciding, that the SCA applies to public posts.
14
consent exception allows providers to disclose communications configured by the
user to be public”). We ultimately bypass that question, though, because even
assuming, as the trial court concluded, that the SCA applies to the public posts at
issue here, we agree that the District’s subpoena is enforceable.
As the trial court recognized, our holding in Pepe applies with equal force
when it is the government, rather than a private party, seeking to compel disclosure
of communications that fall within one of the § 2702(b) exceptions. Nothing in the
text of § 2702 suggests a different result. Section 2702’s consent exception to the
general bar on disclosure instructs that a service provider “may divulge the contents
of a communication . . . with the lawful consent of the originator or an addressee or
intended recipient of such communication, or the subscriber in the case of remote
computing service,” drawing no distinctions based on the nature of the recipient. 18
U.S.C. § 2702(b)(3). The parties agree that this exception applies here, and as we
held in Pepe, when the SCA permits the disclosure of electronic communications to
a third party, a service provider must comply with a valid subpoena requiring such
disclosure. 241 A.3d at 258.
Meta counters that Congress enshrined an entirely different set of rules for
government actors seeking to compel disclosure in § 2703. In particular, it
15
highlights the provision’s directive that “[a] governmental entity may require the
disclosure” of electronic communications “only pursuant to a warrant.” 18 U.S.C.
§ 2703(a). Thus, it claims, “a warrant is the sole—exclusive—means by which the
government ‘may require’ disclosure of content.” This textual argument gets off to
a bad start because the plain text of § 2703 does not, in fact, require the government
to obtain a warrant whenever it seeks to compel electronic communications. The
statute requires a warrant only when communications are held in “electronic storage”
by an electronic communication service provider for 180 days or less. 18 U.S.C.
§ 2703(a). Meta ducks this nuance by asserting “the SCA’s original distinction
between communications in storage for more or less than 180 days has largely been
abandoned.” Maybe so, but to the extent that distinction has been abandoned, it was
for constitutional rather than statutory reasons. See, e.g., United States v. Warshak,
631 F.3d 266, 288 (6th Cir. 2010) (“[T]o the extent that the SCA purports to permit
the government to obtain” emails older than 180 days “warrantlessly, the SCA is
unconstitutional.”); H.R. Rep. No. 114-528, at 9 (2016) (citing Warshak and
questioning “constitutional validity” of distinction). So those authorities are no fix
to the initial textual problem with Meta’s statutory interpretation argument.
But the far bigger textual problem with Meta’s interpretation of § 2703 is that
it reads this provision in isolation, whereas “[s]tatutory interpretation is a holistic
16
endeavor.” Grayson v. AT&T Corp., 15 A.3d 219, 238 (D.C. 2011) (en banc)
(citation omitted). When viewed in its broader statutory context, it becomes clear
that § 2703 is an additional grant of authority permitting government actors alone to
compel disclosures even when no exception to § 2702(a)’s broad prohibition on
disclosure applies, not a unique restriction on government actors when a § 2702(b)
exception does apply, as Meta reads it. 6
Start with the fact that government entities are the only actors that the SCA
affirmatively authorizes to compel disclosures of communications covered by
§ 2702(a)’s general prohibition, even when no § 2702(b) exception applies. There
is no similar authorization for private parties to compel disclosures in the face of a
§ 2702(a) bar. So when a § 2702(b) exception applies to lift the bar on disclosure,
it would make no sense if the government’s additional grant of authority could be
weaponized against it, and read to preclude the government from availing itself of
6
We add a reminder that where no § 2702(b) exception applies to exempt the
service provider from § 2702(a)’s general prohibitions against disclosure, then
compliance with § 2703 really is the government’s exclusive option for compelling
disclosures. See Wint, 199 A.3d at 628. And even compliance with the SCA might
not be good enough, as the Constitution may provide added protections, for instance,
by protecting communications that are held in storage for more than 180 days in a
way the SCA’s plain text does not. See Warshak, 631 F.3d at 291 (“[T]o the extent
that the SCA purports to permit the government to obtain [emails older than 180]
days warrantlessly, the SCA is unconstitutional.”).
17
the same external legal processes that private parties can avail themselves of when
a § 2702(b) exception applies. Through § 2703 Congress provided the government
with an additional tool to compel disclosures that no private party has; it did not erect
an obstacle to disadvantage the government from compelling information that a
private party could obtain. In arguing otherwise, Meta seeks to invert the asymmetry
that the SCA assigns to governmental and private actors’ respective abilities to
compel communications, contrary to the SCA’s overall scheme.
And there are further textual indications that the SCA grants the government
a greater ability to compel protected communications than the average Joe, rather
than less as Meta would have it. For instance, several of the § 2702(b) exceptions
permit the disclosure of otherwise protected communications only to government
entities. Service providers must disclose to the National Center for Missing and
Exploited Children any communications that they become aware of which indicate
a violation of various laws against child pornography. 18 U.S.C. § 2702(b)(6)
(referencing 18 U.S.C. § 2258A’s mandatory reporting requirements). Those
disclosures are required by law, whether or not the government has a warrant.
Providers also may disclose, but only to “a law enforcement agency,” any
communications “inadvertently obtained by the service provider” that “appear to
pertain to the commission of a crime.” Id. § 2702(b)(7). They may disclose only
18
“to a governmental entity” communications that trigger a good faith belief “that an
emergency involving danger of death or serious physical injury” is afoot and requires
“disclosure without delay” to avoid hazardous results. Id. § 2702(b)(8). 7
When §§ 2702 and 2703 are read together, their import is clear: § 2702(a)
broadly precludes service providers from disclosing the contents of their users’
communications, and unless some § 2702(b) exception applies, the government
alone can compel the disclosure of those communications, and can do so only by
complying with § 2703’s strictures. But where a § 2702(b) exception does apply to
remove § 2702(a)’s bar on disclosure, then the government and private parties alike
can avail themselves of the “mandatory disclosure requirements imposed by other
law,” Pepe, 241 A.3d at 258, like the CPPA’s subpoena powers the District invokes
in this case. Section 2703(a) cannot sensibly be read as a bar on the government’s
ability to compel disclosures that private parties could compel, when it is instead an
additional grant of authority to the government that private parties lack. See id. at
7
We have not surveyed the field to examine whether there are some
compulsory reporting requirements in state or federal laws that might require
disclosure of materials that fall within these §§ 2702(b)(7) or (b)(8) exceptions. If
there are, then our reasoning in Pepe would apply there as well, so that service
providers are not only permitted to, but must, comply with those requirements
(barring some constitutional hurdle to disclosure).
19
257 (noting the “weighty and well-settled presumption against inferring that
Congress silently intended to foreclose or restrict the availability of a core
component of the judicial process such as the subpoena power”).
Meta protests that § 2703 has its own consent exception (applicable only to
non-content records), which it argues would be “wholly superfluous” under our
reading of the statute, as § 2702 also has a consent exception for non-content records.
Compare 18 U.S.C. § 2703(c)(1)(C) with id. § 2702(c)(2). That’s wrong. The
§ 2702(c)(2) consent exception removes a bar or disability on the service provider
that would otherwise preclude them from disclosing such records, whereas
§ 2703(c)(1)(C) is an affirmative authorization permitting the government to compel
disclosure when the user consents to it. Put another way, when a § 2702 exception
applies, the government—like any other party—can compel disclosure only if they
can point to some authority that allows them to do so; here the District points to its
authority to subpoena records and compel disclosures in furtherance of a CPPA
investigation. See D.C. Code § 28-3910. Whereas when § 2703(c)(1)(C) authority
applies, the government need not point to some external source of authority that
permits it to compel disclosure of non-content records—the provision itself provides
that. There is no superfluity.
20
Meta next counters that our reading of the SCA’s text would make us “the
sole outlier” among courts to have considered this issue. That is a rhetorical sleight
of hand. Meta points to just two decisions from trial courts that it suggests support
its view, and only one of them even arguably does. In truth, Meta’s position here is
so novel that there are simply not any appellate court decisions addressing it, and the
trial court decisions that Meta cites give us no pause.
Meta first points to FTC v. Netscape Communications Corp., 196 F.R.D. 559
(N.D. Cal. 2000). That case is inapposite because there was no suggestion in it that
a § 2702(b) exception applied to the communication sought to be compelled via
agency subpoena. Netscape thus stands for the unremarkable position that where no
§ 2702(b) exception applies, the government’s sole recourse for compelling
disclosure is to comply with § 2703’s strictures. We agree with that—we held
likewise in Wint, 199 A.3d at 629—but it is not the issue before us.
Meta’s other authority is closer to the mark, but unpersuasive. See People v.
Harris, 949 N.Y.S.2d 590 (N.Y. Crim. Ct. 2012). Harris involved a subpoena issued
by a District Attorney’s Office seeking tweets publicly posted from a Twitter
account, allegedly operated by a criminal defendant, over the course of more than
100 days. Id. at 591. The trial court enforced that subpoena as to all but a single
21
day’s tweets, because only that day’s tweets were “less than 180 days old,” and
therefore the court concluded they could be compelled only by a search warrant. Id.
at 596, 598. The court did not address whether the tweets fell within any § 2702(b)
exception to the SCA’s general bar on disclosure, and there is no indication that any
party raised that point. It did not grapple with the statutory structure of the SCA, as
discussed above. And unsurprisingly the parties and the court alike were more
focused on (1) the 100-plus days of tweets that fell outside the 180-day window and
therefore did not require a warrant than they were with the single day of tweets that
fell within it, and (2) the attendant question of whether Twitter users’ themselves
had standing to quash the subpoena served on Twitter. Id. at 593. As to the
remaining single day’s tweets, the court offered nothing resembling persuasive
statutory analysis, stating only that “the government must obtain a search warrant
for the December 31, 2011 tweets.” Id. at 596. That conclusion is some support for
Meta’s view here, but it is anemic, and it gives us no cause to reconsider our own
statutory analysis.
D. The SCA’s Legislative History
The legislative history supports our reading of the SCA as well. As previously
explained, the SCA is roughly meant to extend Fourth Amendment protections to
22
electronic communications and the like. It seeks to neutralize the incident of
technology that things like emails are typically disclosed to third-party service
providers—thereby calling the Fourth Amendment’s protections into doubt—for
purposes of transmission. There are two features of Meta’s proposed interpretation
of the SCA that do not square with this history: (1) it would extend Fourth
Amendment-like protections to public disclosures, which would ordinarily receive
slim-to-no Fourth Amendment protections; and (2) the protections it extends would
not actually belong to the individual users themselves, but instead would belong to
the service providers. We elaborate below on why neither feature aligns with the
legislative history, then we respond to Meta’s counterpoints to it, but before all of
that, we detail the legislative history itself.
1. The Legislative History in Broad Strokes
The SCA was enacted as part of the Electronic Communications Privacy Act
(ECPA) of 1986, Pub. L. No. 99-508, which predates the World Wide Web by
several years. As one might expect, applying the SCA to modern technology is often
like cramming a square peg into a round hole. See generally Orin Kerr, The Next
Generation Communications Privacy Act, 162 U. Pa. L. Rev. 373, 378, 390-410
23
(2014) (detailing a variety of reasons “why the [ECPA] is based on outdated
assumptions”).
As the Senate Report accompanying the legislation explained: “When the
Framers of the Constitution acted to guard against the arbitrary use of Government
power to maintain surveillance over citizens, there were limited methods of intrusion
into the ‘houses, papers, and effects’ protected by the fourth amendment.” S. Rep.
No. 99-541, at 1-2 (1986). Because of technological developments, however,
Congress believed that the Constitution’s protections had become “hopelessly out of
date.” Id. at 2. Unlike one’s physical property, electronic records and
communications are frequently in the possession and control of third-party service
providers, which arguably renders them “subject to no constitutional privacy
protections.” Id. at 3 (citing Miller, 425 U.S. 435). “Thus, the information may be
open to possible wrongful use and public disclosure by law enforcement authorities
as well as unauthorized private parties.” Id. The SCA sought to fill this perceived
gap in the Fourth Amendment’s protections:
[T]he law must advance with the technology to ensure the
continued vitality of the fourth amendment. Privacy
cannot be left to depend solely on physical protection, or
it will gradually erode as technology advances. Congress
must act to protect the privacy of our citizens. If we do
not, we will promote the gradual erosion of this precious
right.
24
Id. at 5; see also H.R. Rep. 99-647, at 19 (“Additional legal protection is necessary
to ensure the continued vitality of the Fourth Amendment.”).
2. Meta Would Expand the SCA Far Beyond the Fourth Amendment
This Congressional intent—to eliminate an instance of legal arbitrage by
applying the Fourth Amendment’s protections to a new technology via statute—
comports with our reading of the SCA’s disclosure provisions. Communications
blasted in public fora, for all to see or hear, generally are not protected by the Fourth
Amendment, putting the nicety of third-party electronic transmitters of
communications aside. “What a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protection.” Katz v.
United States, 389 U.S. 347, 351 (1967); accord Biles v. United States, 101 A.3d
1012, 1024 (D.C. 2014). So it would make little sense to extend the SCA’s
protections to such communications.
Meta’s interpretation would do just that, despite the fact that publicly
broadcast communications have no shelter in the Fourth Amendment itself. That
would expand the SCA far beyond the Fourth Amendment protections that Congress
sought to mimic. To the contrary, the House and Senate Reports affirmatively
indicate that Congress did not intend for the SCA’s protections to cover content that
25
the user took no steps to keep private. For example, both reports include extended
discussions of electronic bulletin board systems (BBS)—“early analogues to the
social media platforms at issue here.” Hunter, 417 P.3d at 739. As one article
describes this archaic technology, dialing into a BBS was akin to “visit[ing] the
private residence of a fellow computer fan electronically. BBS hosts had converted
a PC . . . into a digital playground for strangers’ amusement.” Benj Edwards, The
Lost Civilization of Dial-Up Bulletin Board Systems, The Atlantic (Nov. 4, 2016).
These early (now anachronistic) digital meeting spaces could be configured as either
“public or semi-public in nature, depending on the degree of privacy sought by
users.” S. Rep. 99-541, at 9. Only the latter, non-publicly accessible BBSs were
intended to fall within the SCA’s protections. As the Senate Report puts it, the
SCA’s protections do not apply where a BBS “does not require any special access
code or warning to indicate that the information is private. To access a
communication in such a public system is not a violation of the Act, since the general
public has been ‘authorized’ to do so by the facility provider.” Id. at 36; see also
Snow v. DirectTV, Inc., 450 F.3d 1314, 1321 (11th Cir. 2006) (“[T]he requirement
that the electronic communication not be readily accessible by the general public is
material and essential to” the SCA’s scope of protections).
26
Meta counters that this discussion of BBSs relates only to the SCA’s
provisions prohibiting the unauthorized access and interception of electronic
communications, or what is effectively the SCA’s anti-hacking provision, 18 U.S.C.
§ 2701. That is not quite right. BBSs feature heavily in the House Report’s
discussion of § 2702, one of the two disclosure provisions we are concerned with
here. Specifically, after noting that a user can waive the SCA’s protections by
consenting to their communications’ disclosure, the report states that “a subscriber
who places a communication on a computer ‘electronic bulletin board,’ with a
reasonable basis for knowing that such communications are freely made available to
the public, should be considered to have given consent to the disclosure or use of the
communication.” H.R. Rep. 99-647, at 66; see also 18 U.S.C. § 2702(b)(3). In other
words, Congress clearly contemplated that publicly broadcast communications
would not be protected under § 2702’s broad prohibition on disclosure. While Meta
is correct that BBSs were not specifically discussed in relation to § 2703, what is
missing from the legislative history is any indication whatsoever that Congress
intended to preclude the government from obtaining, via subpoena or other
compulsory process, materials that were not protected under § 2702 in the first place.
27
3. Meta Would Leave the SCA’s Protections to Service Providers’ Discretion
There is another feature of Meta’s statutory interpretation that is at odds with
the SCA’s legislative history. That history evinces Congress’s intent to confer upon
individual users of electronic services Fourth Amendment-like protections. But
recall that Meta’s view is not that its users have any right to prevent it from
complying with the subpoena in this case—because a § 2702(b) exception applies,
Meta acknowledges that it is free to comply with the subpoena. Meta’s view is
instead that it alone decides whether it will comply with, or defy, the subpoena,
entirely at its own discretion. Under that view, the SCA in fact confers no
protections to Meta’s users when a § 2702(b) exception applies, save for those that
their service provider’s good graces—and maybe the terms of service—afford them.
There is simply nothing in the SCA’s legislative history that suggests Congress
meant to enshrine such service-provider-centric protections. 8 To the contrary, by
8
We do not mean to overstate the point, because users could enter into private
agreements with their service providers—like agreeing to a social media site’s terms
of service—that preclude disclosure of their private information. It might be a
sensible enough regime to leave users’ privacy interests to such agreements, and we
do not opine on that. Cf. Orin Kerr, Terms of Service and Fourth Amendment Rights
(Jan. 29, 2023), U. Penn. L. Rev. (forthcoming), available
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4342122;
https://perma.cc/7MDY-RJ7B (arguing that terms of service do not generally alter
Fourth Amendment rights). We conclude only that there is no indication in the
28
seeking to mirror the Fourth Amendment’s protections, the legislative history
evinces Congress’s intent to protect individual users from the discretionary
disclosure choices that their service providers might otherwise make.
It is true that when a § 2702(b) exception applies to permit the disclosure of
otherwise protected communications, the statutory text itself says only that the
provider “may divulge the contents of a communication,” which would generally
connote some degree of discretion, consistent with Meta’s view. But we have
already explained in Pepe why that generally permissive statutory language is a bit
of a mirage: “[T]he subdivisions in § 2702 where ‘may’ appears are framed not as
a grant of discretionary power but as a special exception to a general prohibition. In
such a context all ‘may’ means is that the actor is excused from a duty, liability, or
disability,” it does not “suggest unlimited discretion.” 241 A.3d at 258 (cleaned up)
(first quoting Hunter, 417 P.3d at 751, then quoting Zadvydas v. Davis, 533 U.S.
678, 697 (2001)). And once the § 2702(a)’s general prohibition on disclosure is
lifted, via a § 2702(b) exception, the provider’s discretion is subject to “disclosure
requirements imposed by other law.” Id.
legislative history that this is the regime that Congress had in mind when passing the
SCA.
29
4. Meta’s Counterpoints Are Unpersuasive
Meta offers two counterpoints from the legislative history, but neither is
persuasive. First, it notes that when discussing § 2703, the Senate Report states that
“[a] government entity can only gain access to the contents of such an electronic
communication pursuant to a warrant.” S. Rep. 99-541, at 38 (emphasis added).
Similarly, the House Report describes § 2703 as providing “the procedures the
government must use before it can obtain access to the contents of any electronic
communication held by a provider of a remote computing service.” H.R. Rep. 99-
647, at 67 (emphasis added). But while Meta argues that these statements “could
not be more clear,” they in fact do not contemplate communications that are
unprotected by § 2702 in the first place (owing to the applicability of § 2702(b)
exception). Quite the opposite. The premise underlying these discussions was “that
the contents of [the] message in storage were protected by the Fourth Amendment,”
H.R. Rep. 99-647 at 68, and Congress was of the correct understanding that publicly
disclosed communications received no such Fourth Amendment protections, as the
history detailed above makes clear. This history thus supports our view, that where
communications are not protected by § 2702’s anti-disclosure provisions in the first
place, § 2703’s warrant requirement does not apply.
30
Next, Meta argues that applying § 2702’s exceptions to cases involving
government subpoenas ignores Congress’s stated intent to “guard against the
arbitrary use of Government power to maintain surveillance over citizens.” S. Rep.
99-541, at 1. That was certainly Congress’s intent, but our reading of the statute
comports with rather than ignoring it. As discussed, it was well established at the
time of the SCA’s enactment that the Fourth Amendment generally does not protect
the privacy of information that an individual has broadcast to the public. Katz, 389
U.S. at 351. That describes the electronic communications at issue in this case.
There is nothing arbitrary about giving the government the ability to compel the
disclosure of such publicly broadcast communications in much the same way that a
private citizen might do. Pepe, 241 A.3d at 258. It would seem far more arbitrary
to preclude the government from compelling disclosures that any private citizen
might extract. Meta points us to nothing in the legislative history to suggest that
Congress meant to put the government in an inferior position, vis-à-vis private
parties, to compel such disclosures. And we detect no hint of that notion in the
legislative history ourselves.
* * *
31
In summary, the SCA does not authorize a service provider’s refusal to
comply with valid legal process seeking material that a § 2702(b) exception permits
it to divulge. Pepe, 241 A.3d at 258. Because the SCA permits Meta’s compliance
with the District’s valid subpoena, it must comply, as there “is no reason to think the
SCA . . . preempts laws that require disclosures the SCA expressly permits.” Id.
Section 2703 cannot sensibly be read to uniquely inhibit the government’s ability to
compel disclosures that any private party could compel, as Meta contends. The
SCA’s text, structure, and legislative history point to the opposite conclusion: § 2703
was a unique grant of authority to the government—one granted to no private
party—to override § 2702(a)’s broad prohibition in certain circumstances, not a
unique disability on the government when a § 2702(b) exception already applies to
lift that broad prohibition. Meta’s contrary view would stand that statutory scheme
on its head.
III.
We now turn to Meta’s argument that the District’s subpoena impermissibly
intrudes on both its and its users’ First Amendment rights of free speech and
association.
32
We begin by laying some legal groundwork. A court will ordinarily enforce
an investigative subpoena so long as it meets the three-prong test announced in
United States v. Morton Salt Co., 338 U.S. 632, 652-53 (1950). Under that test,
“[w]e consider only whether [1] ‘the inquiry is within the authority of the agency,
[2] the demand is not too indefinite and [3] the information sought is reasonably
relevant.’” Resol. Tr. Corp. v. Thornton, 41 F.3d 1539, 1544 (D.C. Cir. 1994)
(quoting Morton Salt, 338 U.S. at 652). There is no dispute, and we agree, that this
test is satisfied here: (1) the District, through its Office of the Attorney General, is
charged with enforcing the CPPA and may “subpoena witnesses” and “compel
production of records” under its investigative authority to do so, D.C. Code
§ 28-3910(a); (2) its demands are not indefinite; and (3) the information it seeks to
compel is reasonably relevant to its investigation.
But Meta argues that Morton Salt does not apply here, because where
compelled disclosures seriously implicate First Amendment interests, government
subpoenas may face more exacting judicial scrutiny. The seminal case for this
proposition is NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), which
involved an attempt by Alabama’s attorney general to compel the disclosure of the
NAACP’s membership lists. Id. at 452. The NAACP refused to comply, and it was
held in civil contempt and fined $100,000. Id. at 453-54. The Supreme Court of the
33
United States reversed, reasoning that Alabama’s investigation into the NAACP
“entail[ed] the likelihood of a substantial restraint upon the exercise by petitioner’s
members of their right to freedom of association,” and that Alabama had failed to
demonstrate an interest “which is sufficient to justify the deterrent effect.” Id. at
462-63. The Court more recently described this “exacting scrutiny” standard as
requiring “a substantial relation between the disclosure requirement and a
sufficiently important governmental interest.” Ams. for Prosperity Found. v. Bonta,
141 S. Ct. 2373, 2383 (2021) (“AFPF”) (quoting Doe v. Reed, 561 U.S. 186, 196
(2010)). 9
But that more recent decision in AFPF did not suggest that all government
subpoenas are doomed under the exacting scrutiny standard, regardless of the nature
of the information sought. Rather, the Supreme Court indicated that compelled
disclosures need only satisfy this standard when “First Amendment activity is
chilled—even if indirectly.” Id. at 2384. When it is not, the far more deferential
9
Meta suggests in a single footnoted sentence that because the District’s
subpoena seeks a “content-based disclosure,” it should be subject to strict, rather
than merely exacting, judicial scrutiny. But a majority of the Supreme Court recently
rejected that more demanding standard in AFPF. See 141 S. Ct. at 2383 (Roberts,
C.J.) (three justice plurality employing exacting scrutiny); see id. at 2396
(Sotomayor, J., dissenting) (agreeing with the plurality that exacting scrutiny
applies). Meta makes no actual argument as to why that majority view should not
control here, so we apply it.
34
Morton Salt standard continues to govern our review. A party such as Meta claiming
a First Amendment privilege bears the burden of “demonstrat[ing] that enforcement
of the discovery requests will result in . . . consequences which objectively suggest
an impact on, or ‘chilling’ of, the members’ associational rights.” Perry v.
Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010) (citation omitted). Only after
this prima facie showing do we consider if a subpoena satisfies exacting scrutiny.
Id. at 1161; accord In re Motor Fuel Temperature Sales Pracs. Litig., 641 F.3d 470,
488 (10th Cir. 2011) (“[T]he party claiming a privilege always bears the initial
burden of establishing the factual predicate for the privilege.”).
For the reasons that follow, we conclude that Meta has not shown that the
District’s subpoena, which seeks information related to publicly accessible content
generated by its users, will result in chilling Meta’s free speech or associational
rights. As to Meta’s users, we assume the exacting scrutiny standard applies, but
conclude that the District has demonstrated that its subpoena is “narrowly tailored
to the government’s asserted interest.” AFPF, 141 S. Ct. at 2383. We therefore hold
that enforcing the District’s subpoena does not violate the First Amendment.
35
A. Meta’s Own First Amendment Rights
We begin with Meta’s claim that the District’s subpoena impermissibly
intrudes upon its own First Amendment rights by “prob[ing] and penaliz[ing]” its
ability to exercise editorial control over the content that is disseminated through its
platform. The trial court disagreed, concluding that even if the First Amendment
protects the ability of a private social media company to make unfettered content
moderation decisions, 10 enforcing the District’s subpoena would not chill Meta from
engaging in that activity, so that exacting scrutiny is unwarranted. We agree.
At its core, Meta’s argument boils down to two assertions: that the District’s
investigation (1) is really just an attempt to “pressure Meta into changing how it
exercises [its] protected editorial control over its platform”; and (2) that government
scrutiny of its practices more generally will lead to a chilling of the company’s
speech.
10
It is far from clear that it does. Federal courts are sharply divided—in
multiple senses of the phrase—on the point. Compare NetChoice, LLC v. Attorney
General, 34 F.4th 1196, 1210 (11th Cir. 2022) (holding that the First Amendment
protects a social media platform’s right to moderate user-generated content as it sees
fit), with NetChoice, LLC v. Paxton, 49 F.4th 439, 445 (5th Cir. 2022) (holding that
it does not, “reject[ing] the idea that corporations have a freewheeling First
Amendment right to censor what people say”). The District does not press the issue,
however, so we assume without deciding that this First Amendment right does exist.
36
On the first point, we disagree with Meta’s characterization of the District’s
investigation. As the subpoena itself states, the District is investigating only whether
Meta’s “representations regarding efforts to prevent and remove vaccine
misinformation from the Facebook platform” violate the District’s consumer
protection statute, the CPPA. There is no suggestion that the District is investigating
whether Meta’s moderation policies or efforts to police them were unlawful or
insufficient in themselves (except to the extent that they belie Meta’s
representations). The District has disclaimed any interest in regulating Meta’s
editorial judgment when it comes to its content moderation, and Meta’s reply brief
expressly denies accusing the District of acting in bad faith. This was a prudent
concession. While it is certainly possible for an otherwise valid government
investigation to be launched on pretexutal grounds, Meta points to no evidence that
this is the case here. See Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573–74
(2019) (emphasizing that a “strong showing of bad faith or improper behavior” is
required before inquiring whether an agency is acting pretextually (citation
omitted)).
As to Meta’s argument that the District’s subpoena (even if issued as part of
a legitimate investigation) nonetheless chills its speech, we again disagree. To
reiterate, the only speech that is being targeted by the District’s investigation are
37
Meta’s public statements regarding the company’s content moderation practices,
which the District alleges were deceptive and in violation of the CPPA. If those
allegations are true, then an enforcement action under the CPPA would pose no
constitutional problem at all, as the First Amendment “does not prohibit the State
from insuring that the stream of commercial information flow cleanly as well as
freely.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
748, 772 (1976). In other words, even if content moderation is itself protected
speech, fraudulent misrepresentations regarding a company’s moderation practices
is not.
Meta tries to take this argument a step further, claiming an investigation into
its statements about its content moderation practices might indirectly chill those
practices themselves. “[J]ust as a subpoena demanding notes from an editorial board
meeting would risk chilling a newspaper’s editorial rights,” Meta argues, so too does
the subpoena here threaten its “exercise of editorial control.” The problem with that
analogy is that Meta not only made its content moderation policies publicly
available, it then widely touted the actions that were supposedly taken pursuant to
those policies; indeed, those public statements were the basis for the District’s
investigation. To piggyback on the editorial board analogy, if the newspaper itself
had published an account of its editorial policies and decisions, and it turned out to
38
be potentially fraudulent in some way, it would not chill the newspaper’s exercise
of editorial control to investigate whether the newspaper’s public statements on that
topic were false. Meta offers no theory for how a subpoena targeting documents that
tangentially relate to this entirely public information risks any chilling of its speech,
and we likewise discern none.
B. Meta’s Users’ First Amendment Rights
Meta also argues that enforcing the District’s subpoena would chill the First
Amendment rights of its users. In essence, its theory is that forcing Meta to identify
the users whose posts were removed under the company’s COVID-19
misinformation policy “associate[s]” those users with “speech that [the District]
views as undesirable.” That association, Meta argues, risks deterring these users
from engaging in future online discussions of controversial topics. See Talley v.
California, 362 U.S. 60, 65 (1960) (“[I]dentification and fear of reprisal might deter
perfectly peaceful discussions of public matters of importance.”). We seriously
doubt that. The District seeks disclosures related to public posts, and the users who
made those posts have already openly associated themselves with their espoused
views by publicly posting them to Facebook. While we doubt exacting scrutiny
39
should apply here, we will assume that it does for the sake of argument, and conclude
that the District’s subpoena nonetheless passes constitutional muster.
Recall that exacting scrutiny examines the fit between the importance of the
government’s interest and the means used to realize that interest. “To withstand this
scrutiny, the strength of the governmental interest must reflect the seriousness of the
actual burden on First Amendment rights.” AFPF, 141 S. Ct. at 2383 (quoting Doe,
561 U.S. at 196). More concretely, there must be “a substantial relation between the
disclosure requirement and a sufficiently important governmental interest, and . . .
the disclosure requirement [must] be narrowly tailored to the interest it promotes.”
Id. at 2385 (citations omitted).
The District’s subpoena satisfies both of these requirements. The CPPA
“establishes an enforceable right to truthful information from merchants about
consumer goods and services that are or would be purchased, leased, or received in
the District of Columbia.” D.C. Code § 28-3901(c). And its list of prohibited trade
practices includes instances where a company “misrepresent[s] . . . a material fact
which has a tendency to mislead.” Id. § 28-3904(e). While the merits of the
District’s investigation are not presently before us, it seems plausible at first blush
that false or misleading statements regarding a social media company’s attempts to
40
control the spread of COVID-19 misinformation might run afoul of this statute. As
a result, we are satisfied that any First Amendment impact resulting from the
District’s investigation is in service of a sufficiently important government interest.
Indeed, as AFPF itself held, “[i]t goes without saying that there is a ‘substantial
governmental interest[] in protecting the public from fraud.’” 141 S. Ct. at 2386
(quoting Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 636
(1980)).
Meta acknowledges that the District has a “legitimate interest in consumer
protection in general.” It nonetheless argues that such an interest is not implicated
here, where Meta’s public statements about content moderation were mere “puffery”
and therefore non-actionable under the CPPA. But commercial puffery is non-
actionable because it consists of statements whose “truth or falsity . . . cannot be
precisely determined,” such as a sign in a storefront window promising “Satisfaction
Guaranteed.” Pearson v. Chung, 961 A.2d 1067, 1076 (D.C. 2008) (quoting
Tietsworth v. Harley-Davidson, Inc., 677 N.W.2d 233, 245 (Wis. 2004)). This sort
of general assertion, incapable of measurement, is unlikely to lead reasonable
consumers astray and therefore cannot be the basis for a CPPA violation. Id. But
that does not describe Meta’s public statements about its COVID-19 misinformation
policy. Meta claimed that it removed 20 million items of content and over 3,000
41
user accounts as a result of enforcing that policy. These are not the “[l]ofty but
vague” statements that can be chalked up to puffery. See Prager Univ. v. Google
LLC, 951 F.3d 991, 1000 (9th Cir. 2020). They are instead quite detailed,
quantifiable, and capable of verification.
As to the fit between that government’s interest and the scope of the District’s
investigation, we likewise conclude that the subpoena—now that it has been limited
to documents relating to publicly accessible posts—is sufficiently tailored. Though
Meta claims that the District’s subpoena could have pursued “less intrusive
alternatives,” such as aggregated or anonymized data, 11 some of the statements that
are the target of the District’s investigation concern the company’s actions regarding
repeat offenders and individuals publicly identified as major purveyors of COVID-
19 misinformation. The investigation focuses not on the users spreading
misinformation or the specific content of their public posts, but on Meta’s statements
11
The trial court’s order does not require Meta to “unmask” any anonymous
users, as it requires Meta to produce “only the identities that these users themselves
employed in public posts.” Meta counters that even that order might “chill protected
speech by disclosing users to the government who identified themselves only to
‘private groups.’” But recall that these groups are only nominally private, and the
trial court’s order targets information regarding posts that were spread so widely as
to be functionally public. It is hard to see how a user who broadcasts their posts so
widely would be chilled by disclosure here (when any recipient of the broadcast
could have disclosed the posts to the government themselves).
42
about its regulation of that misinformation. The Superior Court found there is not a
“less intrusive means” for the District to carry out this investigation than the
subpoena at issue, and we likewise see none. Accordingly, because the subpoena is
appropriately tailored to serve the government’s interest, and that interest is
sufficiently important, it satisfies exacting scrutiny.
IV.
For the foregoing reasons, the judgment of the Superior Court is affirmed.
So ordered.
DEAHL, Associate Judge, concurring: I am in full agreement with the court’s
opinion and write separately to address two issues it rightly bypasses. First is
whether § 2702(b)(3)’s consent exception actually applies on the facts of this case.
Second, taking a step back, is whether the SCA’s protections apply to publicly
posted messages at all. I think both of those questions should be answered in the
negative, which would lead to the same result the court reaches: Meta must comply
with the District’s subpoena.
43
First, on the question of consent, I adhere to a general rule of thumb when
trying to figure out if somebody consents to something: You ask them. Here, the
users whose posts are targeted by the District’s subpoena have not been asked
whether they consent to disclosure to the government, and so I find it artificial to say
they have consented to such disclosure. The trial court reasoned to the contrary, that
“when a user posts content on Facebook that is generally accessible to the public,
the user implicitly consents to disclosure.” While that might be a fair inference if
the posts remained public, the posts at issue here have all been removed, so I see no
reason to conclude that any consent to disclosure endures. People are generally free
to withdraw consent and might do so by, for instance, removing or restricting access
to a once-public post. See Ford v. United States, 245 A.3d 977, 984-85 (D.C. 2021)
(recognizing ability to withdraw or revoke consent to a search). The fact that the
posts at issue here are no longer public would preclude me from inferring any present
consent to disclosure. Nonetheless, Meta does not challenge this aspect of the trial
court’s ruling, and so I agree with the opinion for the court that this point has been
conceded. Supra at 11-13.
To be sure, a person who publicly posts something opens themselves up to the
risk—really, the high likelihood when it comes to popular social media sites—that
some third party will save their post for posterity and render any attempt to delete it
44
from public viewing futile. But that is just to say that third parties generally may do
what they will with publicly disclosed communications, which is quite different from
saying the user consents to whatever they do. And a service provider is not free to
do what they want with the communication if the SCA’s protections apply to it (an
important caveat discussed next): they are constrained by the statute, and where the
statute requires the user’s consent to disclosure, I do not think that eternal consent
can be fairly inferred from the fact that a person once publicly posted something.
Second, I agree with the District that the SCA does not apply to public posts
in the first place, 1 so my above concern with the consent exception’s application is
an entirely academic point here. The SCA was enacted to “protect electronic
communications that are configured to be private.” Konop v. Hawaiian Airlines,
Inc., 302 F.3d 868, 875 (9th Cir. 2002). When read as a whole, and in light of the
legislative history discussed extensively in the court’s opinion, the SCA’s apparent
1
The court correctly does not reach this weighty issue because it is obviated
by Meta’s concession that the consent exception applies. I note that, in advancing
its view that the SCA does not protect public posts, the District places too much
weight on 18 U.S.C. § 2511(2)(g)(i), which it suggests is an unambiguous standalone
textual basis for concluding that the SCA does not apply to public posts. It is not.
Meta correctly counters that this provision concerns the intercept or access of
electronic communications, not their disclosure. Still, the provision is some
evidence that the SCA was not meant to reach public posts, and the Act’s overall
structure and legislative history provide much more evidence for that conclusion.
45
“purpose is to protect information that the communicator took steps to keep private.”
Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 668 (D.N.J.
2013); Snow v. DirecTV, Inc., 450 F.3d 1314, 1321 (11th Cir. 2006) (“[T]he
requirement that the electronic communication not be readily accessible by the
general public is material and essential to” the scope of the SCA’s protections.).
When a person publicly posts a message for the world to see, it falls outside
of the SCA’s protections altogether. In that case, the service provider is best seen as
providing a public platform for a user to broadcast a message, rather than acting as
an “electronic communication service,” a phrase the statute seems to use to refer to
a third-party transmitter of otherwise private communications.
This reading of the SCA makes sense. The SCA was meant to effectively
neutralize the undesired but necessary disclosure of private communications to third-
party service providers; it is not as if the user wants to share their communications
with service providers, so much as they are necessary conduits for relaying messages
to their intended recipients. The SCA steps into that relationship to dictate that the
disclosure to a third-party service provider merely for the purposes of transmitting
the message is a non-event, and should not affect the user’s privacy interests in their
communications that might otherwise be deemed private. But when a user blasts a
46
message for the world to see, the service provider does not act merely as a necessary
transmitter of that communication, but can itself be seen as a recipient of it (just like
everybody else). The third-party transmittal problem that is the SCA’s raison d’être
no longer exists. In that situation there is no Fourth Amendment gap for the SCA to
fill, so it makes little sense to extend the SCA’s protections to it.
My view admittedly faces a textual hurdle, which is that nothing in the
statutory definitions of “electronic communication” or “electronic communication
service” expressly says that the communication at issue must be a private one. See
18 U.S.C. § 2510(12), (15). Those capacious definitions in fact suggest otherwise.
But that is unsurprising given that the SCA was passed in 1986 and there simply
were no platforms for publicly posting electronic messages for the world to see, at
least not on anywhere near the scale of what is available today. The issue was not
on the forefront of legislators’ minds. The closest analogues to social media
platforms at the time were fairly obscure electronic bulletin board systems, which
were analogous in only the barest of ways, and the limited legislative history on
those suggests that Congress did not mean for the SCA’s protections to extend to
publicly configured posts. See S. Rep. 99-541, at 36 (“To access a communication
in such a public system is not a violation of the Act, since the general public has
been ‘authorized’ to do so.”).
47
The SCA is antiquated and could no doubt use a legislative update, but in the
meantime courts should read its provisions in a way that makes sense of the entire
statutory scheme, while cognizant of just how much has changed in the nearly-four
decades since it was passed. Doing that leads me to conclude that the SCA’s
protections do not extend to public posts, and the court should say so if a more
appropriate occasion ever arises.