You are a criminal defendant. There is a witness in your case. Your defense lawyer want to subpoena relevant instant messages, emails, or other communications sent by the witness through MySpace to prepare for trial.
Time for a quiz-
According to MySpace’s legal compliance officer, Scott McFarland, which of the following can subpoena records from MySpace.com?
A) Criminal Defendants
B) The Court
C) Law Enforcement
Did you guess C? That’s right. According to the letter I received today Myspace is no longer accepting subpoenas from criminal defendants, or the court. In fact, they will only honor requests for information from law enforcement. Their authority for this disparate treatment?
The Stored Communication Act, 18 USC 2702, two federal ninth circuit civil cases, and a California court of appeals case. In an Orwellian twist SCA was touted as a “privacy” measure. I guess the SCA trumps outdated legislation like the 6th amendment’s right to confront witnesses. The founders would be proud.
I am not familiar with federal 9th Circuit civil cases nor California state decisions. Mr. McFarland may have been too busy editing his Facebook page to realize my subpoena is a) not in the Ninth Circuit, or California and b) a criminal case.
If myspace is right then the government can easily access records from a social network site, and use those records to convict you. However, defendants can not access those same records to defend a case. That sounds exactly like a “privacy” law the feds would pass.
While dismissing my request for records Scott advised me to seek “user consent” or subpoena these records from the user. Great idea Scott, I’ll call a hostile witness and ask if they will just sign a waiver. Or hope this witness will honestly and completely responds to a subpoena. Why didn’t I think of that? There is a reason we subpoena records from a third party. Such a naive proposition assumes that witnesses are computer literate, and honest.
I will post the letter from MySpace once my scanner starts working again (driver issues).