Facebooking juror fails in asserting SCA claim after forced disclosure of trial-related posts

A California juror recently posted to Facebook about the trial while it was in progress. Upon learning of the act, the juror was required to consent to the court's review in camera of his Facebook postings. He argued that the order violated the Stored Communications Act, but the Court of Appeals of California disagreed (Juror No. One v. The Sup. Court of Sacramento Cnty., No. C067309, (Cal. Ct. App. 2012)).

After trial, one of the jurors told the court that another had posted comments to Facebook about the evidence in the case. That juror had not seen the comments during the trial, but another juror had "liked" one of the posts. The juror-author admitted he posted during the trial, but said the content had nothing to do with evidence. One of the parties in the case attempted to subpoena the juror's Facebook records, but Facebook refused to disclose, citing the SCA. The court later ordered the juror to provide the postings himself.

On appeal, the court held:

Juror Number One has provided this court with nothing, either by way of the petition or the supporting documentation, as to the general nature or specific operations of Facebook. Without such facts, we are unable to determine whether or to what extent the SCA is applicable to the information at issue in this case. For example, we have no information as to the terms of any agreement between Facebook and Juror Number One that might provide for a waiver of privacy rights in exchange for free social networking services. Nor do we have any information about how widely Juror Number One's posts are available to the public. 

But even assuming Juror Number One's Facebook postings are protected by the SCA, that protection applies only as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information. Here, the compulsion is on Juror Number One, not Facebook.

The defendant also suggested that the order violated the Fourth and Fifth Amendments but did not actually present an argument or citation to support the theories.