Joseph Colone v. Superior Court of California, San Francisco County, et al.

In this case, Petitioner was denied the right to subpoena evidence that a court has deemed material and necessary to the litigation examining the constitutionality of his conviction and death sentence. The lower courts held that the Stored Communications Act (SCA), 18 U.S.C. § 2702(a), unqualifiedly bars criminal defendants and other non-governmental litigants from subpoenaing technology companies for the contents of online communications, even where those communications could exonerate the wrongfully accused. The questions presented are:

1. Whether federal statutes must contain express privilege language before courts may decide that Congress intended the statute to create an evidentiary privilege that abrogates the legislated subpoena and discovery rules, and impedes judicial truth-seeking, as the Ninth, Tenth, and Eleventh Circuits have ruled, or whether courts may read ambiguous silence in statutory text to impliedly create such a privilege, as the District of Columbia, Third, and Fifth Circuits, and the lower courts in this case, have ruled.

2. Whether the Stored Communications Act (SCA), 18 U.S.C. § 2702(a), yields to QUESTIONS PRESENTED—Continued judicial process, as the Ninth Circuit has presumed, or whether the Act impliedly creates a novel, unqualified evidentiary privilege for the Internet that bars judicial subpoenas requested by non-governmental litigants, as the Second Circuit, the Ohio State Supreme Court, the District of Columbia Court of Appeals, and the lower courts in this case, have ruled.