Facebook attorneys appeared in a Portland courtroom this week to fight what is becoming an increasingly common demand across the country: Turn over user content that lawyers say they need to defend clients accused of murder, robbery and other crimes.
Facebook won't share the pages of more than 1 billion active users, citing a 1986 federal Internet privacy law that it says prevents it from relinquishing the information.
That stance is sure to draw many more legal tussles in coming years as Americans continue to post copious amounts of revealing information online and criminal defense attorneys realize the treasure trove that Facebook and other social-networking sites, including Twitter and Google+, provide.
Criminal defense attorneys contend that withholding the information -- despite what the Stored Communications Act says -- clashes with the constitutional rights of their clients to gather evidence that might exonerate them.
"The question (judges) are going to have to confront is that statutes grant rights, but the Bill of Rights is the most powerful statute in the country," said Ramon Pagan, a Portland defense attorney who has studied the issue.
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Unlike virtually any other piece of evidence that defense attorneys can acquire -- medical histories, banking records, employee personnel files, cellphone records -- they say they are unable to access electronic communications.
Adding insult to injury, defense attorneys say the federal act sets up an unfair advantage by carving out an exception for law enforcement. Police and prosecutors can gain access to past and current Facebook content, Tweets, Google search histories, emails and a wealth of other electronic communications that defense attorneys can't get.
"It's so one-sided," said Jim Leuenberger, a Lake Oswego attorney who fought with Facebook this past fall. "They cooperate 110 percent anytime someone in the government asks for information."
Leuenberger subpoenaed Facebook for the records of a high school student in The Dalles who is accusing his client -- another high school student -- of rape. Leuenberger heard that she was denying in Facebook conversations that she'd been raped.
Leuenberger ultimately acquired the girl's Facebook content, but only because the prosecutor wanted it for her case and subpoenaed it from Facebook, then shared it with Leuenberger as required under court rules.
Defense attorneys also can get access to a user's Facebook content if the user agrees. That wasn't the case, however, in Sacramento, Calif., when a defense attorney in a gang-beating trial got wind that a juror may have posted his thoughts about the trial. The defense tried to view the comments, but by then, the juror had deleted them. In February 2011, a judge ordered the juror to tell Facebook to give up the information.
A Deschutes County judge gained national attention when he ordered prosecutors to acquire the Google search history of a Bend woman who was raped in 2011. Prosecutors refused, and the judge let the matter rest.
At issue this week in
was whether Facebook would turn over an online conversation between two friends of 17-year-old murder defendant Parrish Bennette Jr., accused of fatally shooting 14-year-old Yashanee Vaughn in March 2011, then dumping her body on Rocky Butte.
Prosecutors aren't interested in acquiring the conversation, and with the trial fast approaching next month, that has left the defense in a predicament.
Bennette's public defender, Thaddeus Betz, was able to get a partial screen grab of the conversation from someone who had access to the page. But Betz wants the text of the entire conversation because he believes it will bolster his client's case.
According to police, Bardy McConnell was one of two of Bennette's friends who said that shortly after the killing, Bennette gave them a gun and told them he'd "served" it. That's street slang for intentionally killing someone with a gun, police say. But months later, McConnell used Facebook to tell a friend he hadn't told police any of that and that police were pressuring him to say it was all true.
Bennette's attorney subpoenaed Facebook for the records. He also got Judge Richard Baldwin to order Facebook to hand over the records.
Betz said Facebook refused to comply with his subpoena.
Betz then asked a new judge assigned to the case to hold Facebook in contempt of court -- meaning under Oregon law, the judge could fine the multibillion-dollar company up to 1 percent of its profits.
Judge Youlee You told two Facebook attorneys who appeared before her Thursday that she thought the Menlo Park, Calif., corporation's response to the earlier court order was "frustrating" and "flippant." She noted that Facebook never responded directly to the judge, but told Betz to pass along its correspondence.
Randy Tyler and Misha Isaak, the Facebook attorneys, said it wasn't their intention to disrespect the court.
"As you can imagine, Facebook gets countless orders and subpoenas like this from courts throughout the country," Tyler said.
Facebook's lawyers argued that the defense hadn't followed proper procedure in filing its subpoena. The lawyers also cited the federal law, and said they thought Betz was going to try to convince prosecutors to acquire the records.
You said she wouldn't hold Facebook in contempt that day. But Betz is free to file his subpoena again, seek another court order against Facebook and ask the judge to order Facebook to hand over the records. And if Facebook declines, Betz could again ask the judge to hold Facebook in contempt.
Tyler told the judge he knows of no other judge -- and there have been hundreds of them -- who has held Facebook in contempt for failing to turn over a user's records on grounds that a defendant's constitutional rights trump the Stored Communications Act.
You said she wanted to see those rulings and told Tyler she'd give him some time to deliver them to her.
So now You, a lone state judge, is weighing the fate of the global social media giant.
Lisa Ludwig, a Portland defense attorney not associated with the Bennette case, said judges such as You are left with some far-reaching decisions to make.
"(There's) this tension between one person's expectation of a right to privacy and another person's rights to defend themselves," Ludwig said. "It also raises the question: Do you really have the right to expect any sort of privacy in your online life? Some people feel like you should: It's just like your mail. And some people feel like you shouldn't: Anything you put out on the Internet, it's not private."
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