Facebook Continues to Fight Against Disclosure of Content Under SCA, But Not Against Government

According to a recent article in Oregon Live, Facebook continues to shield itself from subpoenas for user content based on the Stored Communications Act, a 1986 federal law that created 4th Amendment-like privacy protections for electronically transmitted or stored communications.  However, because of the Act permits law enforcement subpoenas in some circumstances, the effect is that government has an advantage in gaining access to potentially relevant information compared with criminal defendants and civil litigants.  While the applicability of a 1986 law to Facebook posts may be worthy of debate, at least in the case of civil litigants, both sides are equally impaired in obtaining content from Facebook.  It is troubling, however, that criminal defendants are at a disadvantage compared with the government prosecuting them.  While prosecutors typically must turn over all of their evidence to the defense, including potentially exonerating evidence, there is usually nothing to require a prosecutor to subpoena Facebook content they otherwise would not need.