Facebook, Google and Twitter have special online portals for law enforcement agencies, which make it easier for them to request information from users’ accounts. But there are no equivalent portals for public defenders. When Mr. Greco, in New York, wants to send a subpoena to Facebook, he has to get a judge to sign off on it in California and hire a server to deliver it in person to the company’s office in Menlo Park.
“They make it supereasy for law enforcement and superhard for everyone else,” said Mr. Greco. “They should make portals for public defenders.”
“People expect us to keep their information private, and we believe strongly that federal law requires us to do so,” said a Facebook spokeswoman, Rochelle Nadhiri, by email. “That’s why we have strict guidelines for sharing information in response to requests for their information.”
In a forthcoming article for the U.C.L.A. Law Review, Rebecca Wexler, an assistant professor of law at the University of California, Berkeley, argues that “exceptions to privacy laws that enable law enforcement to access sensitive information should also apply to criminal defense investigators.”
Ms. Wexler cites the case of Lee Sullivan and Derrick Hunter, two California men accused of murder. “Sullivan tried to subpoena Facebook, Twitter, and Instagram for private messages that would show that the sole witness who placed him at the scene was lying, but the companies refused to comply, arguing that a federal privacy law from 1986 prevented it,” Ms. Wexler writes. “That left Sullivan and co-defendant Derrick Hunter in jail six years awaiting trial without key evidence to test the credibility of the witnesses against them.”
A judge ordered the companies to hand over the data earlier this year, but they resisted; he held them in contempt in July. “Facebook and Twitter have made it clear that they are unwilling to alter their behavior, regardless of the harm to others — or the rulings of this court,” the judge, Charles Crompton, wrote.
Giovanna Falbo, a spokeswoman for Twitter, said, “We have taken a stand against the state court’s order in this case because we believe that it violates the federal Stored Communications Act and undermines a key purpose of that law — to protect individuals’ privacy rights in electronic communications.”