Facebook and Twitter in ‘Inexcusable Contempt’ Over Refusal to Hand Over Messages in Murder Case

(The Mercury News/TNS) -

Social-media giants Facebook and Twitter were cited by a judge for contempt of court for refusing to hand over private-user communications sought by two men on trial for a Bay Area drive-by shooting that killed a man and wounded a woman.

“Facebook and Twitter appear to be misusing their immense resources to manipulate the judicial system in a manner that deprives two indigent young men facing life sentences of their constitutional right to defend themselves at trial,” San Francisco Superior Court Judge Charles Crompton wrote in an order last week.

“Facebook and Twitter have made it clear that they are unwilling to alter their behavior, regardless of the harm to others — or the rulings of this court. This is inexcusable contempt,” wrote the judge, who in May ordered the companies to turn over the communications.

A Twitter spokesperson said the company had “taken a stand against the court’s order” because the firm believes it violates the federal Stored Communications Act and undermines that law’s protection of people’s privacy rights in electronic communications. “Protecting and defending the privacy of our users is built into the core DNA of our company,” the spokesperson said. “We will continue to fight to preserve this protection for our users.”

A spokesperson for Facebook, which last month was fined $5 billion by the Federal Trade Commission over handling of users’ information, said the company believes federal law prohibits a court order requiring it to hand over private Facebook and Instagram account content of crime victims to a defendant and defense lawyers.

“We will keep working to protect our users’ privacy interests and continue to pursue our challenge of this order in the appellate court,” the Facebook spokesperson said.

A lawyer for both firms said in a court hearing last week that the companies meant no disrespect in refusing to provide the communications, and characterized the conflict as “a good faith disagreement over the requirements of federal law.”

The case is reminiscent of the high-profile dispute between Apple and federal officials over unlocking an encrypted iPhone belonging to the terrorist in the 2015 San Bernardino mass shooting that killed 15 people. Apple refused to create a so-called backdoor, saying it would threaten privacy and security. The FBI subsequently hired a firm to access the phone’s contents.

The judge’s condemnation of the two Silicon Valley tech companies came days after the July 23 start of the trial of Lee Sullivan and Derrick Hunter, charged with murder, weapons offences and gang activity in a 2013 shooting at a bus shelter in the Bayview neighborhood near Hunter’s Point that killed Jaquan Rice, Jr., 19, and seriously injured his 17-year-old friend.

The defendants are seeking 10 private posts from Rice’s account on Facebook-owned Instagram, plus four private posts from the Instagram account of Sullivan’s friend, eight private direct messages on her Twitter account and private posts and messages from her Facebook account. The companies did hand over public communications made on their platforms, Crompton noted during a hearing in May.

In his July 26 contempt order, Crompton wrote that “social media messages among the defendants, the victims, and others had played a central role in the underlying police investigation.”

Prosecutors have alleged that Sullivan, Hunter and Hunter’s younger brother were members of a street gang, while Rice was a member of rival gang. Rice was killed, prosecutors maintained, for his membership in the rival gang and for threatening Hunter’s brother on social media.

After Crompton in May ordered Facebook and Twitter to produce the private communications, the companies appealed. An appellate court and the state Supreme Court issued stays but later dissolved those stays, Crompton wrote.

“Both the Court of Appeal and the Supreme Court limited their rulings to the pre-trial context, and indicated that their rulings might be different if the defendants were actually on trial,” the judge wrote. “Indeed, the Court of Appeal explicitly questioned the constitutionality of the Stored Communications Act if it prohibits individual defendants from subpoenaing documents for use at trial.”

The two companies’ refusal to turn over the communications harmed the defendants’ constitutional rights and drained court and prosecution resources, Crompton wrote.

Crompton levied fines of $1,000 each against Facebook and Twitter, the maximum amount permitted under the law. The companies’ initial appeal of the contempt order was denied Tuesday.