By Alicia Penn

If you subpoena a company like Meta or Snap, Inc. for records, what will you get? The answer depends on what you ask for, where you ask for it, and what you argue.

The current landscape of social media subpoenas looks like this: if you ask for records of messages sent to your client, you should get them. 18 U.S.C. § 2702(b)(1)(2018); see also Facebook, Inc. v. Pepe, 241 A. 3d 248 (D.C. 2020). If you ask for subscriber information (i.e. things that are not considered contents of communications), you should get it. 18 U.S.C. § 2702(a)(1)(2018).

But what if you need a message that was not addressed to your client? Or photographs that were posted on someone else’s page? Here we run into the Stored Communications Act (“SCA”), enacted by Congress in 1986. 18 U.S.C. §§ 2701-2712(2018). Some courts have construed the SCA to allow major technology companies to refuse to comply with criminal defense subpoenas.[1]