Opinion
S230051
12-21-2016
FACEBOOK INC. v. S.C. (HUNTER)
A144315 First Appellate District, Div. 5
Supplemental briefing ordered
The parties are directed to address the proper construction of 18 United States Code, section 2702(a)(1) and (2), part of the Stored Communications Act (SCA), in light of (i) that provision's language; (ii) other language in the Electronic Communications Privacy Act of 1986, of which the SCA is itself a part; (iii) the legislative history of the Acts as reflected in reports by the respective congressional judiciary committees; and (iv) case law construing section 2702(a)(1) and (2) in light of the language and legislative history of the Acts.
Specifically, the parties shall address whether section 2702(a)(1) and (2) should be construed to apply to only those communications that were, when sent, configured to be private - e.g., restricted to “followers” or “friends” - and not to communications that were, when sent, configured to be public, and hence generally accessible to the public. (See, e.g., 18 U.S.C. § 2511(a)(g)(i); House of Representatives Com. on Jud. Rep. No. 99-647 (June 19, 1986); Senate Com. on Jud. Rep. No. 99-541 (Oct. 17, 1986); Konop v. Hawaiian Airlines, Inc. (9th Cir. 2002) 302 F.3d 868; Snow v. Direct TV, Inc. (11th Cir. 2006) 450 F.3d 1314; Viacom Int'l Inc. v. YouTube Inc. (S.D.N.Y. 2008) 253 F.R.D. 256; Crispin v. Christian Audigier (C.D. Cal. 2010) 717 F.Supp.2d 965; Ehling v. Monmouth-Ocean Hospital Service Corp. (D.N.J. 2013) 961 F.Supp.2d 659; cf. People v. Harris (Crim. Ct. N.Y. 2012) 949 N.Y.S.2d 590.)
Simultaneous briefs by the parties addressing this issue are to be served and filed by January 23, 2017. Simultaneous response briefs may be served and filed by February 6, 2017. Amicus curiae, including those who have submitted briefs in this matter, may also serve and file a brief by the later date.