State of Tennessee v. Alexander Johnson and Michael F. Williams

04/12/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 20, 2016 Session

STATE OF TENNESSEE v. ALEXANDER JOHNSON AND MICHAEL F.

WILLIAMS

Appeal from the Criminal Court for Knox County

No. 104964A, B Bob McGee, Judge

No. E2015-02486-CCA-R9-CD

In this interlocutory appeal, the defendants, Alexander Johnson and Michael F. Williams,

challenge the ruling of the Knox County Criminal Court granting the State’s motion to

quash subpoenas duces tecum issued to four State’s witnesses. The State challenges that

portion of the court’s ruling denying its motion to quash subpoenas duces tecum issued to

various electronic communications service providers. Because the State lacks standing to

challenge any of the subpoenas issued in this case, we reverse that portion of the court’s

ruling granting the State’s motion to quash the subpoenas issued to the witnesses. We

affirm that portion of the trial court’s ruling that the State lacks standing to challenge the

subpoenas issued to the service providers. In the interest of judicial economy and to

facilitate further appellate review, we have examined the preempted issues related to the

subpoenas duces tecum issued in this case and have concluded that: (1) although nothing

prevents the defendants in this case, generally, from obtaining the type of electronic

communications at issue via a subpoena issued under the terms of Tennessee Rule of

Criminal Procedure 17 to the witnesses themselves, the defendants have failed to

establish entitlement to all of the requested communications as discussed more fully

below; and (2) under the terms of the Stored Communications Act, see 18 U.S.C. §§ 2701

- 2703, the defendants cannot obtain the contents of the electronic communications from

any of the service providers via a Rule 17 subpoena duces tecum. Accordingly, the trial

court’s November 3, 2015 order relative to the subpoenas duces tecum issued in this case

is affirmed in part and reversed in part. The case is remanded to the trial court for

proceedings consistent with this opinion.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Reversed in

Part; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and NORMA MCGEE OGLE, J., joined.

Steven Ross Johnson and W. Thomas Dillard, Knoxville, Tennessee, for the appellant,

Alexander Johnson.

David Eldridge and Loretta G. Cravens, Knoxville, Tennessee, for the appellant, Michael

F. Williams.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios and

Kyle Hixson, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

On February 12, 2015, the Knox County Grand Jury charged both of the

defendants with two counts each of the November 2014 aggravated rape of C.C.1 As is

relevant to this appeal, the presentment lists as witnesses C.C., Bridget Boland, and

cellular telephone service providers New Cingular Wireless/AT&T Wireless and

Sprint/Nextel Communications. Witnesses Anna Lawn and Natalie Tavares were later

added to the presentment by order. The case proceeded, and discovery materials were

exchanged by the parties.

On August 21, 2015, Mr. Johnson moved the trial court for an order to

accompany subpoenas duces tecum for the production and pretrial inspection of

“specified cellular telephone and social media communications and information.”2 He

argued that the “requested communications are evidentiary and relevant,” that the

communications were “not otherwise reasonably procurable in advance of trial by due

dilligence,” that he could not prepare for trial in the absence of this information, and that

the motion was “made in good faith” and was “not intended as any general ‘fishing

expedition.’” In support of his motion, Mr. Johnson alleged that discovery materials

already provided by the State “confirm[ed] the existence of social media information and

communications material and relevant to the events at issue.” He stated that interviews

with several of the State’s witnesses indicated that many of those witnesses, including

C.C., had communicated with both of the defendants and with each other via text

message, iMessage,3 and social media before and after the alleged offenses occurred.

1

We utilize initials in keeping with the policy of this court.

2

Mr. Williams later moved the court to adopt each of the relevant motions filed by Mr. Johnson.

3

“You can use the Messages app on your iPhone, iPad, or iPod touch to send messages. Those

messages are sent as iMessage or SMS/MMS.” https://support.apple.com/en-us/HT207006 (last visited

February 1, 2017). “iMessages are texts, photos, or videos that you send to iOS devices and Macs over

Wi-Fi or cellular-data networks. These messages are always encrypted and appear in blue text bubbles.”

Id. “If you aren’t using iMessage, you can use SMS/MMS. These messages are texts and photos that you

-2-

According to Mr. Johnson, Ms. Lawn indicated to the police that she “‘immediately’”

began texting C.C.’s roommates after Ms. Lawn left Mr. Johnson’s bedroom, leaving

C.C. in the company of both defendants. Mr. Johnson also alleged that interviews with

the police indicated that the police “may have even instructed, advised, or at the very

least insinuated to” C.C. and other State’s witnesses that they should remove social media

information “from public view” and should refrain from communicating about the

offenses via social media. Mr. Johnson indicated that he had learned from the State that

the police had searched, but had not preserved, any social media communications. He

also noted that the police had preserved all the data from Mr. Johnson’s cellular

telephone but had preserved none from cellular telephones belonging to C.C. or any other

State witness.

At the August 24, 2015 hearing on the defendants’ motion, counsel for Mr.

Johnson indicated that after learning that the Knoxville Police Department (“KPD”) had

“sent preservation letters under the Electronic Stored Communications Act to

communication providers to preserve information from certain witnesses, namely, [C.C.]

and Ms. Lawn,” the defendants sent a specific discovery request for that information. In

its response to the specific discovery motion, the State related that the KPD “did not, in

fact, obtain the messaging information of its witnesses.” Counsel insisted that the

information was necessary to ensure that Mr. Johnson received a fair trial and moved the

court to provide an order “that compels, along with the subpoenas that will be issued, the

various service providers to provide the . . . data communications” to the trial court under

seal.

The State opposed the motion on grounds that the motion, which was filed

on the Friday before the first trial was set to begin,4 was untimely, noting that the State

had “incurred a large expense . . . in preparing for this trial” and that several of the State’s

witnesses had obligations related to their status as student athletes that presented

scheduling difficulties. The State also argued that the defendants had failed to allege

specific facts to support the issuance of the subpoenas, describing the subpoena request as

“nothing more than an 11th-hour fishing expedition.” The State observed that the

defendants had also failed to identify any particular piece of admissible evidence that

would be uncovered.

send to other cell phones or iOS devices. SMS/MMS messages aren’t encrypted and appear in green text

bubbles on your device.” Id. “When you send a text message to someone that has an Apple ID, the

Messages app automatically recognizes that person’s Apple ID and routes the message through Apple’s

servers instead of using the cell phone carrier. This is done automatically and avoids any texting charges

from the cell phone carrier.” http://www.ianswerguy.com/imessage-difference/ (last visited February 1,

2017).

4

The trial court had previously granted Mr. Johnson’s motion to sever his trial from that of Mr.

Williams.

-3-

With regard to timing, counsel for Mr. Johnson stated that the State had

provided them with Mr. Johnson’s cellular telephone data in the week before trial and

that he had only learned two days before filing the motion that the State had not obtained

any electronic communications from anyone other than Mr. Johnson. Citing United

States v. Nixon, 418 U.S. 683 (1974), counsel argued that Mr. Johnson need only

“establish that there could be information that’s material and relevant on there.” He

observed that the discovery materials were replete with information that “there was a lot

of text messaging and social media communications that were going on about this party

that night” and that, Ms. Lawn in particular, participated in social media and text

messaging communications immediately after leaving C.C. in Mr. Johnson’s bedroom in

the company of the defendants. Counsel also pointed to KPD interviews where C.C. and

other witnesses discussed with KPD detectives “about whether or not they should have

their social media taken down.”

The State argued that the defendants had failed to satisfy the Nixon standard

and argued that the information sought by the defendants qualified as witness statements,

which would not be discoverable prior to trial under the terms of Tennessee Rule of

Criminal Procedure 26.2. The defendants countered that the information could not be

covered by Rule 26.2 because that rule, by its terms, is restricted to information in

possession of the parties.

At the conclusion of the hearing, the court granted the motion, stating that it

felt “compelled to give the defendant[s] a full opportunity to gain any information that

may be helpful to their case.” The court ordered that the materials be returned to

chambers by September 8, 2015. In the written order, the court found “that specific and

articulable facts establish[ed] reasonable grounds to believe that records and information

pertaining to designated cellular telephone and social media communications are relevant

and material to a pending criminal matter.” On that same day, the court entered a

protective order that provided that “all materials produced to the court subject to the said

Order and subpoenas duces tecum are to be filed under seal and made a part of the

technical record in this matter.” The protective order also provided for “[e]xact

duplicates of all materials . . . to be provided in their entirety to counsel for the parties.”

Immediately following the hearing, the defendant issued and served 21

subpoenas duces tecum:

Provider Information Requested Persons Covered Timeframe

AT&T Mobility “[a]ll stored electronic C.C. 11/1/2014 -

communications” “and the Ms. Lawn present

related account records,

-4-

including but not limited to

the call detail records

(including all incoming and

outgoing calls, the duration

of said calls, the time and

date of said calls, and the cell

site addresses and/or cell

tower information associated

with said calls), audio

recordings, saved contacts,

geolocation data, text

messages or iMessages sent

or received, photographs,

video recordings, and

voicemail messages”

Instagram5 “[a]ll stored electronic C.C. 1/1/2014 -

communications” including Ms. Lawn present

“basic subscriber information Ms. Boland

(including Instagram Ms. Tavares

username, e-mail address,

telephone number, and

timestamps and IP addresses

for account logins/logouts),

photographs, photo captions,

and other posts from the

subscriber’s Instagram

accounts(s), and the content

of messages, photos,

comments, and location

information”

Twitter6 “[a]ll stored electronic C.C. 1/1/2014 -

5

“Instagram is a social networking app made for sharing photos and videos from a smartphone.”

“It’s like a simplified version of Facebook, with an emphasis on mobile use and visual sharing. Just like

other social networks, you can interact with other users on Instagram by following them, being followed

by them, commenting, liking, tagging and private messaging.” https://www.lifewire.com/what-is-

instagram-3486316 (last visited February 8, 2017).

6

“Twitter is a free micro-blogging tool that allows users to publish short messages (140

characters or less) through their computers and mobile phones.” “People who use Twitter write short

messages, called Tweets, which they publish either publicly (for all Twitterers to see) or privately (for

only certain Twitterers to see).” https://www.lifewire.com/twitter-basics-3476455 (last visited February

8, 2017).

-5-

communications” including Ms. Lawn present

“account/user information Ms. Boland

(including username(s)), the Ms. Tavares

associated ‘Twitter archive,’

communications and/or

content (including following,

followed, muted, and blocked

accounts, status updates

(‘tweets’) posted and replies

received, ‘tweets’ marked as

a ‘favorite,’ direct messages

sent and received, list

memberships, lists subscribed

to, and uploaded files

(including photographs and

video files and whether

through pic.twitter.com,

Periscope, Vine, or any other

means)), and geolocation

data”

Snapchat7 “[a]ll stored electronic C.C. 1/1/2014 –

communications” including Ms. Lawn present

“basic subscriber information Ms. Boland

(including Snapchat Ms. Tavares

username, e-mail address,

telephone number, and

timestamps and IP addresses

for account logins/logouts),

logs (including sender,

recipient, date, and time) of

‘snaps,’ ‘stories,’ and/or

‘chats’ sent to or from the

subscriber’s Snapchat

account(s), and the content of

‘snaps,’ ‘stories,’ and/or

‘chats’ sent to or from the

7

“Snapchat is both a messaging platform and a social network” that “exists only as a mobile app

you can download to your iPhone or Android smartphone.” Snapchat “[p]hotos and videos essentially

disappear a few seconds after they’ve been viewed by their recipients” unlike “other social networks,

which keep your content online forever unless you decide to delete it.” https://www.lifewire.com/what-

is-snapchat-3485908 (last visited February 8, 2017).

-6-

subscriber’s Snapchat

account(s)”

Facebook “[a]ll stored electronic C.C. 1/1/2014 -

communications” including Ms. Lawn present

“basic account/user Ms. Boland

information (including user Ms. Tavares

identification number(s)

and/or username(s), e-mail

address(es), registered mobile

telephone number, etc.),

expanded subscriber content

(including profile contact

information, status update

history, shares, notes, wall

postings, list of ‘friends and

other accounts ‘followed,’

list of ‘pages’ ‘liked,’ list of

groups joined, future and past

events, video files, etc.), user

photos (whether uploaded by

the user or by other users),

private messages sent and

received, activity logs, and

geolocation data”

Yik Yak, Inc. 8 “[a]ll stored electronic C.C. 1/1/2014 -

communications” including Ms. Lawn present

“each message posted, the IP Ms. Boland

address from which each Ms. Tavares

message was posted, the

Global Positioning System

(‘GPS’) coordinates of the

location from which each

message was posted, the time

and date when each message

was posted, and the user-

agent string associated with

the device from which each

8

“Yik Yak is basically an anonymous location-based status posting app for your local

community, which shows you anonymous posts from people around your geographical area.”

https://www.lifewire.com/what-is-yik-yak-3485928 (last visited February 2, 2017).

-7-

message was posted”

On September 11, 2015, Mr. Johnson filed a motion asking the trial court

“to set a date certain for the pretrial inspection of specified cellular telephone and social

media communications and information sufficiently in advance of trial to permit the

parties’ meaningful inspection and analysis” of the materials and “to issue the necessary

process to secure the attendance at the pretrial inspection of the out-of-state witnesses

with custody of said communications and information.” In support of his motion,

counsel for Mr. Johnson indicated that they were “actively working” to obtain the

requested materials from Yik Yak, which counsel deemed “likely to comply” with the

subpoena. Additionally, counsel averred that AT&T had marked the subpoena as

“‘urgent’” to assure quick compliance. Counsel averred that Facebook, Instagram,

Snapchat, and Twitter had “responded to the Court’s Order and subpoenas with

objections” in the form of a letter sent to defense counsel. Those providers

“recommended” that the defendants “obtain the subpoenaed communications and

information directly from the” account holders.

Without accepting the validity of the service providers’ objections, Mr.

Johnson informed the court of his intention to issue additional subpoenas duces tecum to

the four individual account holders requesting “the same communications and

information previously subpoenaed from their service providers.” To facilitate this

process for the three witnesses9 who were, at that time, residing out of state, Mr. Johnson

moved the court to issue the necessary process to secure the attendance of each witness at

the pretrial inspection of the materials.

Three days later, on September 14, 2015, Mr. Johnson moved the trial court

to hold Facebook, Instagram, Snapchat, and Twitter in contempt for failing to comply

with the court’s order and subpoenas. Mr. Johnson noted that although those service

providers had objected to the subpoenas via letter, none had filed a motion to quash. On

the following day, Mr. Johnson moved the court “to compel the state to request search

warrants to obtain the specified social media communications and information previously

subpoenaed pursuant to the Court’s Order of August 24, 2015.” Mr. Johnson claimed

that responses from Facebook, Instagram, Snapchat, and Twitter indicated that those

providers would release the subpoenaed information pursuant to a search warrant. Mr.

Johnson also moved the court on September 15, 2015, “to issue the necessary process [to]

secure the compliance of out-of-state service providers with the Court’s previous Order

and accompanying Subpoenas Duces Tecum regarding specific social media

communications” and “to reset the date for compliance with the same to September 28,

2015.” In a supplemental motion also filed on September 15, 2015, Mr. Johnson

9

C.C., Ms. Boland, and Ms. Lawn.

-8-

informed the court that counsel for Facebook, Instagram, and Twitter had informed

counsel for Mr. Johnson that those entities planned to secure local counsel to file

responsive pleadings and “to address the multiple matters of first impression presented in

this case surrounding the [F]ederal Stored Communications Act.” Mr. Johnson also

noted that counsel for those providers indicated during a telephone conversation “that

some of the communications at issue are no longer available possibly due to deletion by

the content subscriber.”

Following a hearing on September 17, 2015, the trial court held in abeyance

the motion to hold the service providers in contempt. The court also modified the time

for compliance with the subpoenas to September 28, 2015. Also on that date, the

defendants issued subpoenas to the four witnesses that required production of each

witness’ current and former cellular telephone handsets and copies “in native format” of

all the data “associated with any and all” current and former Facebook, Instagram,

Twitter, Snapchat, and Yik Yak accounts for the period between May 15, 2014, and

December 31, 2014. Each subpoena contained directions for obtaining the necessary

information from Facebook, Instagram, Twitter, and Snapchat. None explained how the

data could be retrieved from Yik Yak. The trial court issued certificates of materiality to

accompany the subpoenas.

On September 28, 2015, the State moved to quash the subpoenas issued to

C.C., Ms. Boland, Ms. Lawn, and Ms. Tavares, claiming that “[c]ompliance with these

[s]ubpoenas is unreasonable and oppressive” and that “the [s]ubpoenas are cumulative in

that they seek information and records that are already being sought by subpoenas issued

to various communications/social media providers.” In its motion, the State averred that

“[i]n some instances, the witnesses never had social media accounts with the companies

listed in the [s]ubpoenas,” that “[i]n some instances, the witnesses have found it

impossible to limit data retrieval to the time period listed in the [s]ubpoenas,” and that

“the [a]ttachment to the [s]ubpoenas provides no instructions at all for retrieving data

from Snapchat or Yik Yak.” The State attached to its motion an email from Ms. Boland’s

mother that it claimed “detail[ed] the onerous nature of the data-retrieval portion of the

[s]ubpoenas.” The State also noted that the attachment to the subpoenas issued to the

four witnesses contained a requirement that the witnesses “provide for inspection any

cellular telephone handset that they used primarily or exclusively between May 15, 2014

through December 31, 2014” when the trial court’s order did not cover these cellular

telephone handsets.

Also on September 28, 2015, the State moved the trial court “to modify all

subpoenas issued concerning the communications/social media accounts of” C.C., Ms.

Lawn, Ms. Boland, and Ms. Tavares, arguing that “the time frame for most of the

subpoenaed materials is overly broad.” The State asked that the subpoenas issued to the

-9-

social media service providers regarding C.C.’s accounts be modified to cover

communications between May 15, 2014, and December 31, 2014. The State asked that

the subpoenas issued to the social media service providers regarding the remaining

witnesses’ accounts be modified to cover communications from November 15, 2014, to

December 31, 2014. In support of its request, the State posited that there had “been no

showing that social media or telephonic activity concerning the event in question actually

occurred before the offense.”

On October 20, 2015, Mr. Johnson moved the trial court to compel the four

witnesses to show cause as to why they should not be held in contempt for failing to

comply with the subpoenas. Mr. Johnson indicated that he had sent the subpoenas to the

three out-of-state witnesses on September 21, 2015, “by FedEx priority overnight service

with adult signature required.” C.C. and Ms. Boland received and signed for the

packages on the following day. C.C. was served with domesticated Florida process on

September 24, 2015. Delivery to Ms. Lawn was attempted on “three consecutive days

until September 24, 2015, when someone requested that the package be held at the local

FedEx facility.” After three more days passed without anyone retrieving the package, it

was returned to counsel for Mr. Johnson. Mr. Johnson then sent a second package to Ms.

Lawn without a signature requirement, and that package was delivered on September 29,

2015.

According to Mr. Johnson, on September 22, 2015, C.C. sent a letter along

with “an assortment of printouts from various social media service providers” to the trial

court. This assortment did not include any electronic communications made during the

week surrounding the alleged offenses in this case. It did include printouts from

Instagram, Twitter, and Snapchat that appeared to explain why she had been unable to

retrieve the subpoenaed information. The letter, which was filed under seal but appended

to Mr. Johnson’s motion, does support Mr. Johnson’s statement that C.C. upgraded to a

new cellular telephone handset on January 27, 2015. She claimed that the older handset

had malfunctioned but stated that she had sold the telephone through a website after

restoring it to the default factory settings. As of October 20, 2015, none of the remaining

witnesses had returned any of the subpoenaed materials to the court. Mr. Johnson asked

that the witnesses be made to show cause for their failure to comply and that the court

enforce the statutory forfeiture for their noncompliance.

Mr. Johnson also stated that the responsive documents received from

AT&T indicated that both C.C. and Ms. Lawn had disposed of their cellular telephone

handsets “within 24 hours of one another on January 27 and 28, 2015.” In the letter,

which was appended to the pleading, AT&T indicated that it had not stored the content of

text messages for either C.C. or Ms. Lawn but that iMessages might be retrieved from

-10-

either witness’s iCloud10 account. AT&T also stated that it could not provide access to

voicemail within a certain timeframe; that, generally, it retained voicemails only for 14 to

30 days; and that voicemails deleted by the customer could not be recovered at all. Mr.

Johnson moved the court to require both C.C. and Ms. Lawn to provide their iCloud login

credentials to Sword & Shield Enterprise Security, Inc., “to download the witnesses’ data,

limit the data retrieved to the time periods stated in the [s]ubpoenas, and provide the

responsive data to the Court and all counsel.”

On October 20, 2015, local counsel for Facebook, Instagram, Snapchat, and

Twitter (hereinafter collectively “the social media providers”)11 filed a “Notice” of the

status of the subpoenas issued to those parties. In the notice, the social media providers

indicated that the subpoenas issued to all but Snapchat had been domesticated in

California but nevertheless maintained that the Stored Communications Act (“SCA”) did

not authorize them to release the contents of electronic communications to criminal

defendants. The social media providers contended that the appropriate procedure was to

subpoena the information directly from the users. Twitter, in particular, “confirmed and

advised” local counsel “that it has no records to produce in response to any” of the

subpoenas. Facebook and Instagram agreed “to produce non-content records . . . as

permitted under the SCA, after giving the users 21 days’ notice and an opportunity to

object.” The social media providers did not take any position regarding the State’s

motion to quash but did “reserve any and all objections that may be asserted to the

subpoenas.” The social media providers also noted that “any objections that cannot be

consensually resolved” would be “properly litigated in the California court from which

the [s]ubpoenas issued.” The notice also indicated that counsel for Mr. Johnson had

agreed to stay compliance with the subpoenas and to withdraw his motion for contempt.12

On October 23, 2015, Mr. Johnson moved the court to dismiss the

presentment, exclude the testimony of the witnesses, or issue an adverse inference

instruction based upon the State’s failure to preserve the electronic communications that

were the subject of the subpoenas. He argued that because the police were aware that

several of the witnesses in this case used text messaging and social media to

communicate before and after the alleged offenses, they should have endeavored to

10

“At its most basic level, ‘the cloud’ is the Internet, or more accurately, a piece of the Internet.”

https://www.lifewire.com/what-is-icloud-3972867 (last visited on February 3, 2017). “The ‘iCloud’ is the

generic name for . . . . Apple’s ‘cloud-based’ or Internet-based services.” Id. The “iCloud automatically

backs up the information” stored on Apple “devices—iPhone, iPad, and iPod touch—over Wi-Fi every

day when they are turned on, locked, and connected to a power source.” This daily backup covers

“iMessage, text (SMS), and MMS messages.” https://support.apple.com/kb/ph12519?locale=en_US (last

visited on February 3, 2017).

11

Yik Yak has not objected to the subpoenas at any point.

12

Mr. Johnson, in other pleadings, indicates that the motion for contempt was held in abeyance

rather than withdrawn.

-11-

preserve those communications. Mr. Johnson also noted that, following the alleged

offenses, C.C. gave conflicting statements and that, following her interviews with KPD

detectives, she had reset her cellular telephone to its factory settings, thereby deleting her

text messages and contact information. Although she claimed that she disposed of the

cellular telephone because it no longer worked, she stated that she sold the device on a

website. She also deleted her Twitter and Instagram accounts and deactivated her

Facebook account. Ms. Lawn similarly disposed of her cellular telephone. In that same

pleading, Mr. Johnson indicated that he would not contest the State’s motion to modify

the timeframe of the subpoena.

On October 27, 2015, the State filed an amended motion to quash. In its

amended motion, the State challenged the subpoenas issued to AT&T, the social media

providers (including Yik Yak), and the four witnesses. The State argued that the

defendants had failed to show that the subpoenas will produce material evidence and that

compliance with the subpoenas was unreasonable and oppressive. The State asserted that

the subpoena to C.C. violated her rights as a victim. Finally, the State claimed that

granting subpoenas would have a chilling effect on rape reporting.

In his response to the State’s amended motion to quash, Mr. Johnson

argued that the court had already determined, following a contested hearing, that the

information covered by the subpoenas was both relevant and material. He stated that the

information already disclosed pursuant to the subpoenas confirmed the court’s finding.

Mr. Johnson also claimed that the State lacked standing to challenge the subpoenas

because the State had no “personal right, privilege, or proprietary interest” in the

subpoenaed materials. Finally, Mr. Johnson argued that, even if the State had standing to

challenge the subpoenas, it could not establish that the subpoenas were unreasonable or

oppressive.

Neither party presented evidence at the November 3, 2015 hearing on the

motion to quash. The State argued that the defendants had made “no showing that these

subpoenas will lead to material and admissible evidence,” explaining that materiality was

“the main reason that we’re here in court today.” The State claimed that the defendants

had failed to make even a showing that each of the witnesses had accounts with each of

the social media providers. The State insisted that the defendants could obtain text

messages exchanged between them and any of the witnesses from the defendants’ cellular

telephones. The State asserted that the defendants had presented no proof of the need to

confiscate the cellular telephones of C.C. and Ms. Lawn. The State emphasized that the

“main issue” as far as the State was concerned was “that these subpoenas are unsupported

by material or admissible evidence.” The State also argued, however, that “these

subpoenas are oppressive and unreasonable, under Rule 17,” citing as proof the email

sent to the prosecutor by Ms. Boland’s mother as exhibited to their motion to quash, in

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which Ms. Boland’s mother claimed that she and her husband had spent several hours

attempting to assist Ms. Boland in complying with the subpoena and that compliance had

been more time consuming than anticipated, to support its assertion that compliance with

the subpoenas was unreasonable. Finally, the State asserted, as it had in its amended

motion to quash, that requiring C.C. to comply with the subpoenas would create a

chilling effect on rape reporting and prosecuting.

The defendants argued that the State had failed to establish any need for the

court to revisit its earlier ruling that the subpoenaed materials were material and relevant.

The defendants also asserted that the State’s motion to quash was untimely because some

of the witnesses and some of the providers had already begun to comply with the

subpoenas. Finally, the defendants maintained that the subpoenas were not unreasonable

or oppressive and that there was no practical or legal reason to stop the subpoena process

after compliance had begun and so close to trial. The defendants suggested that if the

witnesses were experiencing technical difficulties, then the court should appoint an expert

to help them at the defendants’ expense.

At the conclusion of the hearing, the trial court granted the motion to quash

as to the four witnesses and denied the motion as to all the service providers, ruling as

follows:

As we said over and over, we’re plowing new ground

here. This is new territory. We’re faced with the reality of

the computer age and the generation of incredible amounts of

communication and the ability to store these communications

and access them. It is a new world and there’s much more

information available now than there has been in the past.

And the way that legal principles concerning the

acquisition of information in litigation is – is struggling to

keep up. We are not – our legal processes have not fully

embraced and resolved the manner in which this immense

amount of information is to be shared, distributed. So we are

without a great deal of guidance and authority in making

these decisions and in managing this case.

In the beginning, this started with the defense

argument – which the Court accepted. The Court accepted

defense counsel’s representations that Federal case law and

Federal statutes are advancing the proposition that stored

media communication should be made available to defendants

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in criminal prosecutions. That’s how all of this started. The

Court accepted that proposition. The Court reviewed 18

United States Code Annotated, 2701 et seq. And this is the

Stored Wire and Electronic Communications and

Transactional Records and Access Act. And that’s how we

began this journey into the business of computer recorded and

stored communication information.

In . . . accord with that finding, and with that

proposition, this Court did approve the subpoena duces tecum

and the accompanying orders to cause social media service

providers to provide to the Court the social media

communication information relevant to this case. That was

the next step.

Some information was provided to the Court pursuant

to the subpoenas from some of the providers. Other servers

reported that it was their policy to leave it to the end users, or

customers, to provide the communication information to

others.

In response, counsel for the defense sought approval

by this Court for subpoenas and orders directed to the end

users, or customers, identified in this case as [C.C.], Bridget

Boland, Anna Lawn and Natalie Tavares.

At this point, it appeared to the Court that there was

some consensus between the State and the defense that it was

appropriate for the end users, or customers, to provide this

information to the Court. There was some agreement that the

State’s attorneys would attempt to help these end users

provide this information.

In the attempt to do so, however, it became apparent

that the end users, or customers, were not able to access the

information in spite of what appeared to be sincere efforts to

do so.

At this point, the State filed the motion to quash the

subpoena. Under these circumstances, this Court finds that

those circumstances justify the extension of the time

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allowable to the State to file its motion. There w[ere]

circumstances that developed after – during the attempt to

comply with the subpoena that the State learned that this, in

their view, was oppressive and the subpoena should be

quashed.

At this point today, this morning . . . the defense is

asking the Court to enforce the subpoenas and the State is

asking the Court to quash the subpoenas.

It now falls to this Court, in this case, to try to find the

proper response of a State trial court to evolving Federal law

pertaining to access for both the prosecution and the defense

to the expediential increase of stored social media

communication information available today.

First, this Court is going to distinguish between two

types of social media communication information. The first

type the Court will refer to as structural information. By this,

the Court means the existence of communications, their

duration, the identities of the end users, or customers, who are

sending or receiving the communications and, where possible,

the location of the senders and receivers. Other types of

information might also be considered as structure.

The second type of social media communication

information this Court will recognize is content.

The Court now considers the four subpoenas on the

individuals, [C.C.], Ms. Boland, Ms. Lawn and Ms. Tavares.

First of all, the Court does find that the State has standing to

move to quash subpoenas that are being used to try to seize

information from their witnesses or potential witnesses.

In considering the relationship between Tennessee law

and the Federal statutes and case law pertaining to subpoenas,

this Court finds as follows:

Part A. In the context of this case, the term “content,”

. . . is equivalent to the legal phrase “statements of witnesses.”

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Tennessee Rule of Procedure, Rule 17, clearly

excludes statements of witnesses from the subpoena power.

The Federal statute deals only with the production of

information by service providers and not by end users, or

customers. That’s the second part.

The third part – the third finding of the Court is: That

this Court does find that the subpoenas on the individuals in

this case are oppressive and unreasonably demanding. The

contention made by the State – rather by the defense, that the

Court should appoint a computer expert to assist compliance

with the subpoena only underscores the unreasonableness of

the subpoena obligation as to those private end users.

And for those three reasons, the fact that Tennessee

Rule of Procedure, Rule 17, excludes statements of witnesses,

and the Federal law deals only with the service providers and

not the end users, and in this case, certainly, the Court is

finding that the subpoenas turn out to be oppressive and

unreasonably demanding. For these three reasons, the Court

does now grant the State’s motion to quash the subpoenas that

have been issued to [C.C.], Bridget Boland, Anna Lawn and

Natalie Tavares.

The Court does find that the State lacks standing to

move to quash the subpoenas that were issued to the service

providers themselves.

In response to questions by the defense, the court stated that the subpoenas issued to the

service providers “remain intact,” explaining, “Those people truly are third . . . parties to

this litigation. And they’re all perfectly capable of hiring lawyers and moving to quash if

they choose to.” The court specifically did not rule on whether the providers had to

provide the content of the communications.

Following the trial court’s November 3, 2015 order, both parties moved the

trial court for permission to seek interlocutory appeal. The trial court granted permission,

and this court agreed to interlocutory review, framing the scope of review as follows:

To be clear, this interlocutory review concerns only the trial

court’s November 3, 2015 order granting, in part, and

denying, in part, the State’s motion to quash subpoenas of the

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alleged victim, witnesses, and social media service providers,

as limited by the trial court’s November 3 order and order

granting permission to seek interlocutory appeal.

Thus, we review the trial court’s conclusion that the State had standing to quash the

subpoenas duces tecum issued to the witnesses, the court’s ruling quashing those

subpoenas, and the court’s ruling that the State did not have standing to quash the

subpoenas duces tecum issued to the various service providers.

I. Standing

The defendants argue that the State lacks standing to file a motion to quash

any of the subpoenas issued in this case because the State lacks “a personal right,

privilege, or proprietary interest” in the materials the defendants seek via the subpoenas.

The State asserts that it has standing based upon its legitimate interests in preventing an

unnecessary delay of the trial and protecting the State’s witnesses. The State also

contends that because it bears a constitutional and statutory “duty to protect the rights of

crime victims and prosecution witnesses alike,” it has standing to contest subpoenas that

“threaten” the rights or interests of the victim and the State’s witnesses.

As the defendants correctly observe, the trial court did not apply the test for

standing to challenge a third party subpoena adopted in State v. Harrison, 270 S.W.3d 21

(Tenn. 2008), and instead concluded, without any analysis, “that the State has standing to

move to quash subpoenas that are being used to try to seize information from their

witnesses or potential witnesses.” Similarly, the court found, in conclusory fashion, “that

the State lacks standing to move to quash the subpoenas that were issued to the service

providers themselves.” In response to a question from defense counsel, the court

clarified that the service providers “truly are third . . . parties to this litigation. And

they’re all perfectly capable of hiring lawyers and moving to quash if they choose to.”

The subpoenas in this case were issued pursuant to Rule 17 of the

Tennessee Rules of Criminal Procedure, which rule provides that “[a] subpoena may

order a person to produce the books, papers, documents, or other objects the subpoena

designates” either “in court before trial or before they are to be offered in evidence.”

Tenn. R. Crim. P. 17(d)(1). “On motion made promptly and in any event by the time

specified in the subpoena for compliance therewith, the court may quash or modify the

subpoena if compliance would be unreasonable or oppressive.” Tenn. R. Crim. P.

17(d)(2). The rule is silent on the issue of who may move to quash a subpoena.

Absent a showing that the State had standing to challenge the subpoenas,

the controversy is not justiciable. West v. Schofield, 468 S.W.3d 482, 490 (Tenn. 2015)

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(“To determine whether a particular case involves a legal controversy, Tennessee courts

use justiciability doctrines that ‘mirror the justiciability doctrines employed by the United

States Supreme Court and the federal courts,’ and these doctrines ‘include: (1) the

prohibition against advisory opinions, (2) standing, (3) ripeness, (4) mootness, (5) the

political question doctrine, and (6) exhaustion of administrative remedies.’” (citations

omitted)); City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013) (“Justiciability

encompasses several distinct doctrines, two of which are . . . mootness and standing.”).

As the moving party, the State bore the burden of establishing its standing to challenge

the subpoenas in this case. ACLU of Tenn. v. Darnell, 195 S.W.3d 612, 620 (Tenn.

2006). Because standing presents a question of law, we review the issue de novo with no

presumption of correctness afforded to the trial court. Massengale v. City of East Ridge,

399 S.W.3d 118, 123 (Tenn. Ct. App. 2012) (citing Cox v. Shell Oil Co., 196 S.W.3d 747,

758 (Tenn. Ct. App. 2005)).

Standing, “‘a judge-made doctrine,’” Fannon v. City of LaFollette, 329

S.W.3d 418, 424 (Tenn. 2010) (quoting Knierim v. Leatherwood, 542 S.W.2d 806, 808

(Tenn. 1976)), is designed “to determine whether a particular litigant is entitled to have a

court decide the merits of a dispute or of particular issues,” Darnell, 195 S.W.3d at 619.

“Grounded upon ‘concern about the proper—and properly limited—role of the courts in a

democratic society,’ the doctrine of standing precludes courts from adjudicating ‘an

action at the instance of one whose rights have not been invaded or infringed.’” Id.

(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975); Mayhew v. Wilder, 46 S.W.3d 760,

767 (Tenn. Ct. App. 2001)). “Every standing inquiry requires a ‘careful judicial

examination of a complaint’s allegations to ascertain whether the particular plaintiff is

entitled to an adjudication of the particular claims asserted.’” Hargett, 414 S.W.3d at 97

(quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).

In Harrison, the supreme court considered whether Harrison had standing

to challenge a subpoena directing Dr. Dennis Wilson, a clinical psychologist who had

conducted a forensic examination of Harrison, “to produce ‘[a]ny and all records’

retained by him related to his psychological evaluation.” State v. Harrison, 270 S.W.3d

21, 26 (Tenn. 2008). Although the Harrison court was examining a judicial subpoena

issued under the terms of Code section 40-17-123, which prescribes the procedure to “be

employed when a law enforcement officer, as defined in § 39-11-106,” requests “the

production of books, papers, records, documents, tangible things, or information and data

electronically stored for the purpose of establishing, investigating or gathering evidence

for the prosecution of a criminal offense,” T.C.A. § 40-17-123(a), we see no reason that

the court’s analysis is inapplicable to subpoenas issued pursuant to Rule 17.

In keeping with the general rule reached by numerous courts that “[a] party

has standing to move to quash a subpoena addressed to another if the subpoena infringes

-18-

upon the movant’s legitimate interests,” see United States v. Raineri, 670 F.2d 702, 712

(7th Cir. 1982), our supreme court concluded that “[a] person who does not have a legally

protectable interest in subpoenaed materials has no standing to challenge either the form

of a subpoena issued to a third party or the manner in which the subpoena was issued,”

see Harrison, 270 S.W.3d at 28. In consequence, the court held that only “a person who

has a personal right, privilege, or proprietary interest in materials subject to a third-party

subpoena has standing to challenge the subpoena.” Harrison, 270 S.W.3d at 28-29.

Accordingly, the court held that Harrison had standing to challenge the subpoena.

Citing Ranieri, the State argues that it has a legally protectable interest in

the subpoenas arising from its “interests in preventing undue lengthening of the trial,

undue harassment of its witness, and prejudicial over-emphasis on [witness] credibility.”

See Raineri, 670 F.2d at 712. The State also asserts that it has standing to advocate the

four witnesses’ personal rights to the subpoenaed materials by virtue of its statutory and

constitutional duty to protect the privacy rights of the victims and witnesses of crime.

We consider each claim in turn.

A. The State’s Own Interest

The State, because of its unique position as “the representative not of an

ordinary party to a controversy” but of the people of the State of Tennessee, see Berger v.

United States, 295 U.S. 78, 88 (1935), will often lack standing in a criminal case “to

challenge a subpoena issued to a third party because of the absence of a claim of

privilege, or the absence of a proprietary interest in the subpoenaed material or of some

other interest in the subpoenaed documents,” United States v. Beckford, 964 F. Supp.

1010, 1023 (E.D. Va. 1997). That is the case here. The State has no personal right,

privilege, or proprietary interest in the electronic communications at issue. That being

said, courts have recognized that the State does have legitimate interests that may, under

certain circumstances, provide it with standing to challenge a third party subpoena issued

by a criminal defendant. The legitimate State interests most often cited come from

Ranieri: “preventing undue lengthening of the trial, undue harassment of its witness, and

prejudicial over-emphasis on [witness] credibility.” See Raineri, 670 F.2d at 712.

In Ranieri, the Seventh Circuit Court of Appeals concluded that the

government had standing to challenge a subpoena issued by Ranieri to a government

witness during trial. The prosecution presented out-of-state witness Cira Gasbarri as its

first witness during Ranieri’s trial on charges that he ran a prostitution ring. The

defendant subjected her to two days’ cross-examination. Id. Nearly three weeks later,

Ranieri issued an ex parte subpoena for Gasbarri to appear as a defense witness. Id. The

prosecution successfully moved to quash the subpoena. The court stated, without

analysis, discussion, or citation to any authority, that “[t]he prosecution’s standing rested

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upon its interest in preventing undue lengthening of the trial, undue harassment of its

witness, and prejudicial over-emphasis on Gasbarri’s credibility.” Id. A number of state

and federal courts have applied the holding in Ranieri to the determination whether the

prosecution in a criminal case has standing to challenge a subpoena issued by the

defendant to a third party. See, e.g., United States v. Segal, 276 F. Supp. 2d 896, 900

(N.D. Ill. 2003); United States v. Daniels, 95 F. Supp. 2d 1160, 1164 (D. Kan. 2000);

United States v. Nachamie, 91 F. Supp. 2d 552, 558 (S.D.N.Y. 2000); Schreibvogel v.

State, 228 P.3d 874, 880 (Wyo. 2010); Com. v. Lam, 827 N.E.2d 209, 214 (Mass. 2005);

State v. DeCaro, 745 A.2d 800, 816 (2000).

Because Harrison involved the defendant’s challenge to a third party

subpoena, our supreme court had no occasion to determine when the State would have

standing to challenge a third party subpoena. Thus, Harrison’s holding is expressed in

terms of what “a person” must show to establish standing: “a personal right, privilege, or

proprietary interest.” As indicated above, it will be difficult if not impossible for the

State in a criminal case to establish specifically “a personal right, privilege, or proprietary

interest.” The Harrison court made it clear, however, that its holding was grounded in

the conclusion that “[a] person who does not have a legally protectable interest in

subpoenaed materials has no standing to challenge either the form of a subpoena issued to

a third party or the manner in which the subpoena was issued.” Harrison, 270 S.W.3d at

28 (emphasis added). That the high court cited Ranieri in support of that conclusion

suggests that “a legally protectable interest,” as applied to the State in a criminal case,

may extend beyond the concepts of “personal right, privilege, or proprietary interest” to

cover the State’s legitimate interests in “preventing undue lengthening of the trial, undue

harassment of its witness, and prejudicial over-emphasis on [witness] credibility,” as

described in Ranieri. Id. at 29; Ranieri, 670 F.2d at 712.

In our view, none of the interests identified in Ranieri are implicated by the

third party subpoenas issued in this case.

First, because the subpoenas were issued prior to trial, there is no danger of

undue lengthening of the trial. “To the contrary, a subpoena returnable before trial will

avoid delay in the government’s prosecution of the case.” United States v. Tomison, 969

F. Supp. 587, 596 (E.D. Cal. 1997) (citing Bowman Dairy Co. v. United States, 341 U.S.

214, 220 (1951)). The Supreme Court has observed that the “chief innovation” of Rule

17 was, in fact, “to expedite the trial by providing a time and place before trial for the

inspection of the subpoenaed materials.” See Bowman Dairy Co., 341 U.S. at 220. The

record indicates that the defendants sought the subpoenas for the service providers as

soon as it became clear that the desired information would not be produced during the

discovery process. Then, when the service providers indicated that the defendants should

seek the information from the end users, the defendants asked for subpoenas to be issued

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to the witnesses. In short, the record gives no indication that the defendants acted with

anything other than urgency in acquiring the subpoenas at issue. In Ranieri, “the

Government’s legitimate interest . . . involved preventing a redundant and time-

consuming reexamination of a witness who had already been subjected to a lengthy and

effective cross-examination.” Nachamie, 91 F. Supp. 2d at 559. No such concerns exist

here.

Second, nothing in the record suggests that the subpoenas issued to the

witnesses in this case caused “undue harassment” of the witnesses or that any of the

witnesses, including C.C., was in a particularly vulnerable position. Asking a witness to

provide his or her evidence to the court in compliance with a validly issued subpoena,

standing alone, cannot qualify as “undue harassment.” In our adversarial system of

justice, “[t]he need to develop all relevant facts . . . is both fundamental and

comprehensive.” United States v. Nixon, 418 U.S. 683, 709 (1974). To this end, “it is

imperative to the function of courts that compulsory process be available for the

production of evidence needed either by the prosecution or by the defense.” Id.

Consequently, it is “a fundamental maxim that the public . . . has a right to every man’s

evidence.” United States v. Bryan, 339 U.S. 323, 332 (1950). “The defendant’s right to

compulsory process is itself designed to vindicate the principle that the ‘ends of criminal

justice would be defeated if judgments were to be founded on a partial or speculative

presentation of the facts.’” Taylor v. Illinois, 484 U.S. 400, 411-12 (1988) (quoting

Nixon, 418 U.S. at 709); see also Nixon, 418 U.S. at 711 (“The right to the production of

all evidence at a criminal trial similarly has constitutional dimensions.”). To be sure,

complying with the subpoenas in this case will require some sacrifice on the part of the

witnesses, but “[t]he personal sacrifice involved is a part of the necessary contribution of

the individual to the welfare of the public.” Blair v. United States, 250 U.S. 273, 282

(1919); see also Blackmer v. United States, 284 U.S. 421, 438 (1932) (“It is also beyond

controversy that one of the duties which the citizen owes to his government is to support

the administration of justice by attending its courts and giving his testimony whenever he

is properly summoned.”).

Although the State argues otherwise, there has been no showing that any of

the witnesses are “peculiarly vulnerable.” Other courts have concluded that the

prosecution has standing to challenge a subpoena issued to a “peculiarly” or

“particularly” vulnerable witness such as the minor victim of a sexual assault, see Com. v.

Lam, 27 N.E.2d 209, 214 (2005) (subpoena issued to the father of the minor victim);

People v. Spykstra, 234 P.3d 662, 667 (Colo. 2010) (subpoena issued to the parents of the

minor victim), or witnesses in a case where there exists a real potential for violence or

threats of violence to the witnesses, see United States v. Orena, 883 F. Supp. 849, 853

(E.D.N.Y. 1995) (subpoena issued to the cooperating witnesses in the witness protection

program and their families in a case where the defendants were “alleged to be aligned

-21-

with the Orena faction of the Colombo Organized Crime family” in a plot “to murder

members of the Persico faction” of the same crime family); United States v. Joseph

Anthony Giampa, a/k/a “Joey G.,” a/k/a “Big Joe,” and Santo Giampapa, Jr., a/k/a

“Jay,” a/k/a “Jay G.,” a/k/a “Jr.,”, No. S 92 CR. 437 (PKL), 1992 WL 296440, at *1

(S.D.N.Y. Oct. 7, 1992) (subpoenas issued to cooperating witness, his wife, and minor

son, all of whom were in the witness protection program, by defendants “charged with

the murder of Michael Salerno, conspiracy to murder Mr. Salerno, and conspiracy to

assault Warren Ulrich in aid of a racketeering enterprise known as the Luchese Organized

Crime Family of La Cosa Nostra”). Instead, the witnesses here are adults with no

demonstrated vulnerabilities that would give rise to the State’s standing to challenge the

subpoenas as a means of protection. That they have been identified as potential witnesses

by the State could not be sufficient, in and of itself, to provide the State with standing.

As the Nachamie court recognized, if the State “had standing to move to quash whenever

a subpoena was served on a potential witness, then it could move to quash virtually every

Rule 17(c) subpoena merely by claiming that the recipient might become a witness.”

Nachamie, 91 F. Supp. 2d at 560. We agree with that court that, “[s]urely, the concept of

standing,” a concept that goes to the very jurisdiction of the court, “was not meant to be

so elastic.” Id.

That the defendants moved the court to hold the witnesses in contempt for

failure to comply with the subpoenas does not alter our analysis. The State implies,

without any evidence, that the motion for contempt was designed to harass, intimidate, or

retaliate against the witnesses. As indicated, “there is a general duty to give what

[evidence] one is capable of giving,” see Bryan, 339 U.S. at 332, and the appropriate

recourse when a party fails to comply with a subpoena, absent some showing of an

adequate excuse for failure to comply, is a motion for contempt, see Tenn. R. Crim. P.

17(g) (“When a subpoena is served on a person, the court issuing the subpoena may deem

the person’s refusal to obey the subpoena to be contempt of court unless the person has

an adequate excuse.”); see, e.g., Blair, 250 U.S. at 282. We cannot characterize the

defendants’ attempt to pursue the only remedy available to them as “threatening.” “A

subpoena has never been treated as an invitation to a game of hare and hounds, in which

the witness must [provide evidence] only if cornered at the end of the chase.” Bryan, 339

U.S. at 331.

Finally, there is no evidence to suggest that the subpoenas in this case will

lead to “a prejudicial over-emphasis on [witness] credibility.” Indeed, in a case such as

this, in which the determination of the defendants’ guilt or innocence will depend solely

on the credibility of the witnesses, we cannot fathom that the credibility of the State’s

witnesses could be overemphasized. That being said, because the subpoenas were issued

prior to the trial, issues of credibility of the witnesses or the emphasis thereon are not ripe

for our review.

-22-

Aside from the three interests mentioned in Ranieri, the State will have

standing to challenge a subpoena issued to a third party when compliance with the

subpoena is “unreasonable or oppressive” as applied to the State. See, e.g., United States

v. Daniels, 95 F. Supp. 2d 1160, 1164 (D. Kan. 2000); Tomison, 969 F. Supp. 587, 596

(E.D. Cal. 1997). Nothing in this case, however, suggests that compliance with the

subpoenas will work any particular hardship on the State or indicates that the materials

subpoenaed include any work product of the State that might give rise to a proprietary

interest in the materials. See Nachamie, 91 F. Supp. 2d at 560 (observing that

prosecution would have standing to challenge subpoena that requested prosecution work

product).

B. The State as Proxy for the Witnesses’ Interests

The State also asserts that its statutory and constitutional duty “to protect

the interests of victims and witnesses” in criminal cases creates in the State a legal

interest giving rise to standing to challenge the subpoenas in this case. In support of its

position, the State points to the supreme court’s statement in Harrison that a legal right or

interest in subpoenaed materials “may, but not must, be created or defined by statute.”

Harrison, 270 S.W.3d at 27. “‘[I]n cases where a party is seeking to vindicate a statutory

right of interest, the doctrine of standing requires the party to demonstrate that its claim

falls within the zone of interests protected or regulated by the statute in question.’” Id. at

28 (quoting Wood v. Metro. Gov’t of Nashville & Davidson Cnty., 196 S.W.3d 152, 158

(Tenn. Ct. App. 2005)).

The State notes that article one, section 35 of our state constitution confers

on crime victims the rights “to justice and due process” and entitles them to, among other

“basic rights,” “confer with the prosecution.” Tenn. Const. art. I, § 35. The State argues

that because Code section 8-7-401 places “at the discretion of the district attorney

general” the decision on the “extent of participation” of private counsel employed by “[a]

victim of crime or the family members of a victim of crime,” see T.C.A. § 8-7-401(a),

prosecutors are “the de facto advocates for victim rights and interests in criminal

proceedings.”

In our view, the State’s argument misapprehends the role of the district

attorney general in a criminal prosecution. The prosecutor is not an advocate for the

victim of a crime or the witnesses for the State but is instead the representative of the

sovereign state of Tennessee charged with “safeguarding and advocating the rights of the

people.” Quillen v. Crockett, 928 S.W.2d 47, 51 (Tenn. Crim. App. 1995). “District

attorneys general are officers of the executive branch, who are entrusted by the citizens of

this state with the duty to seek justice.” State v. Head, 971 S.W.2d 49, 51 (Tenn. Crim.

-23-

App. 1997) (citing State v. Gilliam, 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995); State

v. Mario Pendergrass, No. 01C01-9504-CR–00121, 1997 WL 83777 (Tenn. Crim. App.,

Nashville, Feb. 28, 1997)); see also State v. Griffis, 964 S.W.2d 577, 598 (Tenn. Crim.

App. 1997) (“The district attorney general is a ‘quasi-judicial officer,’ who represents the

state in criminal prosecutions. However, it is as much the district attorney general’s

responsibility to enforce the laws as it is to see the accused receives a fair and impartial

trial.”). Thus, the prosecutor “is in a peculiar and very definite sense the servant of the

law, the twofold aim of which is that guilt shall not escape or innocence suffer.” Berger,

295 U.S. at 88.

Neither the codification of the duties of the district attorney general nor the

statutory and constitutional provisions conferring certain rights upon the victims of crime

alters the prosecutor’s role as the representative of the people of Tennessee. Nor do they

endow the State with the power to represent the victim or the witnesses proffered by the

State. The State “cannot undertake to act as counsel to its witnesses,” even the victim,

because the State’s “interests and that of its witnesses are not identical.” Nachamie, 91 F.

Supp. 2d at 560–61. The prosecutor’s highest interest “in a criminal prosecution is not

that it shall win a case, but that justice shall be done.” Berger, 295 U.S. at 88.

Additionally, the State lacked a sufficient legal relationship with any of the

witnesses in this case to allow the State to assert the witnesses’ own interests in the

subpoenaed material. It is well-established that “a victim in a criminal case does not

meet the definition of a ‘party’” in a criminal trial. State v. Flood, 219 S.W.3d 307, 314

(Tenn. 2007) (citing City of Chattanooga v. Swift, 442 S.W.2d 257, 258 (Tenn. 1969));

see also State v. Brown, 29 S.W.3d 427, 442 (Tenn. 2000) (“A victim in a sexual assault

case is not a party for purposes of a party opponent admission.”). Even though the four

women have been identified as State’s witnesses, “[i]t is hornbook law that generally no

party ‘owns’ a witness.” State v. Womack, 591 S.W.2d 437, 444 (Tenn. Ct. App. 1979).

We also note that the Harrison court did not factor Harrison’s psychologist’s potential as

a witness for either party into its analysis of Harrison’s standing to challenge the

subpoena issued to his psychologist. Harrison, 270 S.W.3d at 26. In fact, the court

found that Harrison had standing to challenge the subpoena despite the fact that he “did

not intend to call Dr. Wilson as a witness at trial or to rely on Dr. Wilson’s records as

evidence in his case-in-chief at trial,” id., because he had “a legitimate personal interest

in the report and records of the clinical psychologist he retained to ascertain whether he is

competent to stand trial and whether he could viably assert an insanity defense,” id. at 29.

Finally, we disagree with the State that it has standing to challenge the

subpoenas because it is in “the best position to assist the trial court” in determining

whether the subpoenas amount to an impermissible “fishing expedition.” The record

establishes that the information that is the subject of the subpoenas is and always has

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been in the exclusive control of the witnesses and the providers. Indeed, the record

suggests that the State has gone to great lengths to avoid collecting the requested

information. Under these circumstances, we cannot see how the State is in a unique

position to comment on the content of the information requested. Indeed, the State

appears to have engaged in a “hide the ball” strategy which is inimical to the

constitutional rights laboriously described above.

Because the State has failed to establish that it has a legitimate interest in

the subpoenas at issue, we conclude that the State lacks standing to challenge the

subpoenas. In consequence, we reverse the trial court’s ruling that the State had standing

to challenge the subpoenas issued to the witnesses in this case and affirm the trial court’s

ruling that the State did not have standing to challenge the subpoenas issued to the

service providers.

Although our conclusion that the State lacks standing to challenge the

subpoenas renders the remaining issues nonjusticiable, in the interests of judicial

economy and potential further appellate review, we address the merits of each party’s

claim regarding the subpoenas.

II. Remaining Issues

At this point we provide a brief reminder of the events that led to this

appeal. The defendants moved the trial court in August 2015 for a court order to

accompany subpoenas duces tecum issued to AT&T, Facebook, Twitter, Instagram,

Snapchat, and Yik Yak to obtain the electronic communications of four State’s witnesses.

The defendants argued that the information was relevant, material, necessary to prepare

for trial, and not obtainable from any other source. At the hearing, the defendants did not

suggest the time period to be covered by the subpoenas or the precise scope of the

information requested, asking generally for “social media information and

communications material and relevant to the events at issue.” Following the hearing, the

trial court granted the defendants’ request, finding “that specific and articulable facts

establish[ed] reasonable grounds to believe that records and information pertaining to

designated cellular telephone and social media communications are relevant and material

to a pending criminal matter.” The subpoenas issued to AT&T demanded essentially

every piece of data associated with the cellular telephone accounts of C.C. and Ms. Lawn,

including “account records, . . . call detail records . . . , audio recordings, saved contacts,

geolocation data, text messages or iMessages sent or received, photographs, video

recordings, and voicemail messages” for the period beginning on November 1, 2014, and

ending with the date of subpoena compliance. The subpoenas issued to the social media

providers similarly asked for every piece of data associated with the accounts of all four

witnesses, both the basic non-content information related to the account and the entirety

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of the contents of the electronic communications, for the period beginning January 1,

2014, and ending with the date of subpoena compliance.

After the defendants received pushback from four of the social media

providers and after learning that AT&T did not possess the content information the

defendants desired, the defendants notified the trial court of their intention to issue

subpoenas directly to the four witnesses asking for identical information. Those

subpoenas issued in September 2015. Only C.C. attempted to comply with the

subpoenas, sending printouts from some social media sites accompanied by a letter to the

trial court explaining why she was unable to provide more information.

The defendants asked that the witnesses be held in contempt for their

failure to fully comply with the subpoenas, and the State moved to quash the subpoenas.

The trial court granted the State’s motion to quash the subpoenas issued to the four

witnesses on grounds that the materials covered by the subpoenas qualified as

“statements of witnesses,” which cannot be obtained by a Rule 17 subpoena. The court

also concluded that the subpoenas were unreasonable and oppressive because the

witnesses had been unable to comply despite their best efforts to do so.

In this appeal, the State maintains that the trial court correctly concluded

that the requested information qualified as witness statements, rendering them

undiscoverable by subpoena, and that the subpoenas were unreasonable and oppressive.

The State also contends that the trial court’s decision to quash the subpoenas to the

witnesses did not violate the defendants’ constitutional rights to compulsory process and

to present a defense. The defendants assert that the trial court erred on all points.

A. What Can the Defendants Obtain?

Both the state and federal constitutions guarantee a criminal accused the

right to compulsory process for obtaining evidence in his favor. See U.S. Const. Amend.

VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have

compulsory process for obtaining witnesses in his favor, and to have the Assistance of

Counsel for his defence.”); Tenn. Const. art. I, § 9.

Because [Sixth Amendment] rights are basic to our adversary

system of criminal justice, they are part of the ‘due process of

law’ that is guaranteed by the Fourteenth Amendment to

defendants in the criminal courts of the States. The rights to

notice, confrontation, and compulsory process, when taken

together, guarantee that a criminal charge may be answered in

a manner now considered fundamental to the fair

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administration of American justice—through the calling and

interrogation of favorable witnesses, the cross-examination of

adverse witnesses, and the orderly introduction of evidence.

In short, the Amendment constitutionalizes the right in an

adversary criminal trial to make a defense as we know it.

Faretta v. California, 422 U.S. 806, 818 (1975); see also Washington v. Texas, 388 U.S.

14, 18 (1967) (“The right of an accused to have compulsory process for obtaining

witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights

that we have previously held applicable to the States.”).

In constitutional law, as in all things in life, however, there are limits. “The

accused does not have an unfettered right to offer [evidence] that is incompetent,

privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory

Process Clause provides him with an effective weapon, but it is a weapon that cannot be

used irresponsibly.” Taylor, 484 U.S. at 410; Chambers v. Mississippi, 410 U.S. 284,

295 (1973) (observing that the criminal defendant’s right to present evidence “is not

absolute and may, in appropriate cases, bow to accommodate other legitimate interests in

the criminal trial process”). Indeed, “[t]he adversary process could not function

effectively without adherence to rules of procedure that govern the orderly presentation

of facts and arguments to provide each party with a fair opportunity to assemble and

submit evidence to contradict or explain the opponent’s case.” Taylor, 484 U.S. at 410-

11. “Rules that provide for pretrial discovery . . . . minimize[] the risk that a judgment

will be predicated on incomplete, misleading, or even deliberately fabricated” evidence.

Id. at 411-12.

In addition to the constitutional right to compulsory process, our Code

contains a statutory right to compulsory process, see T.C.A. § 40-17-105 (“As provided

by the Constitution of Tennessee, the accused, in all criminal prosecutions, has a right to

meet the witnesses face to face, and to have compulsory process for obtaining witnesses

in the accused’s favor.”), and provides that Rule 17 of the Tennessee Rules of Criminal

Procedure “shall govern when a clerk or other authorized officer of the court is required

to issue a subpoena in a criminal case in criminal court and the consequences of a

person’s refusal to appear, testify or produce evidence when subpoenaed,” see id. § 40-

17-122.

Tennessee Rule of Criminal Procedure 17 provides, in pertinent part, as

follows:

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(d) Documents and Objects. A subpoena may order a person

to produce the books, papers, documents, or other objects the

subpoena designates.

(1) Production to Permit Inspection. The court may direct

that the designated items be produced in court before trial or

before they are to be offered in evidence. When the items

arrive, the court may permit the parties and their attorneys to

inspect all or part of them.

(2) Compliance Unreasonable. On motion made promptly

and in any event by the time specified in the subpoena for

compliance therewith, the court may quash or modify the

subpoena if compliance would be unreasonable or oppressive.

The court may condition denial of the motion on the

advancement by the party in whose behalf the subpoena is

issued of the reasonable cost of producing the books, papers,

documents, or other objects.

....

(g) Contempt. When a subpoena is served on a person, the

court issuing the subpoena may deem the person’s refusal to

obey the subpoena to be contempt of court unless the person

has an adequate excuse.

(h) Information not Subject to Subpoena. Statements by

witnesses or prospective witnesses may not be subpoenaed

from the state or the defendant under this rule, but are subject

to production only in accordance with the provisions of Rule

26.2.

Tenn. R. Crim. P. 17(d), (g)-(h).

Against this backdrop, we begin our analysis with the claim we believe to

be the easiest to dispose of: that the subpoenaed materials were “statements by witnesses”

and were thus undiscoverable pursuant to the rules of criminal procedure. Rule 17 is

“similar to its federal counterpart” in that it “makes it clear that the proper method to

secure witness statements from the opposing side--either at trial or at a pretrial hearing

under Rule 12(b)--is as set forth in Rule 26.2.” Tenn. R. Crim. P. 17, Advisory Comm’n

Comments (emphasis added). Rule 26.2 provides that

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[a]fter a witness other than the defendant has testified on

direct examination, the court, on motion of a party who did

not call the witness, shall order the attorney for the state or

the defendant and the defendant’s attorney to produce, for the

examination and use of the moving party, any statement of

the witness that is in their possession and that relates to the

subject matter of the witness’s testimony.

Tenn. R. Crim. P. 26.2(a). As used in Rule 26.2, and by extension, Rule 17, the term

“witness’s statement” means: “(1) A written statement that the witness makes and signs,

or otherwise adopts or approves; or (2) A substantially verbatim, contemporaneously

recorded recital of the witness’s oral statement that is contained in a stenographic,

mechanical, electrical, or other recording or a transcription of such a statement.” Tenn.

R. Crim. P. 26.2(f).

Based upon the plain language of the two rules, neither operates to bar the

subpoenas for the electronic communications in this case. First, the defendants did not

attempt to subpoena any of the electronic communications “from the [S]tate” as

prohibited by Rule 17 because, as the State has made clear, none of the desired

communications has ever been in the possession of the State. See Tenn. R. Crim. P.

17(h). Additionally, because the communications have never been in the possession of

the State, they do not fall within the purview of Rule 26.2, which only governs the

production of “any statement of the witness that is in the[] possession [of the non-moving

party] and that relates to the subject matter of the witness’s testimony.” Tenn. R. Crim.

P. 26.2(a). As indicated earlier, the record suggests that the State has gone to great

lengths to avoid collecting any of the communications sought by the defendants. Second,

the communications do not fall within the definition of “witness’s statement[s]” provided

in Rule 26.2. Nothing in the record suggests that any of the electronic communications

consists of either “[a] written statement that the witness makes and signs, or otherwise

adopts or approves” or “[a] substantially verbatim, contemporaneously recorded recital of

the witness’s oral statement that is contained in a stenographic, mechanical, electrical, or

other recording or a transcription of such a statement.” See Tenn. R. Crim. P. 26.2(f).

Our conclusion that the rules of criminal procedure do not expressly

prohibit the defendants from seeking the electronic communications via Rule 17

subpoena does not end our inquiry.

The Supreme Court has “recognized” that “the subpoena duces tecum”

provided for in the federal counterpart to Rule 17 “was not intended to provide a means

of discovery for criminal cases” and that “its chief innovation was to expedite the trial by

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providing a time and place before trial for the inspection of subpoenaed materials.”13

Nixon, 418 U.S. at 698-99 (citing Bowman Dairy Co., 341 U.S. at 220). Importantly, “[a]

subpoena for documents may be quashed if their production would be ‘unreasonable or

oppressive,’ but not otherwise.” Id. at 698. In consequence, the party seeking production

of evidence via the federal rule prior to trial must show:

(1) that the documents are evidentiary and relevant; (2) that

they are not otherwise procurable reasonably in advance of

trial by exercise of due diligence; (3) that the party cannot

properly prepare for trial without such production and

inspection in advance of trial and that the failure to obtain

such inspection may tend unreasonably to delay the trial; and

(4) that the application is made in good faith and is not

intended as a general ‘fishing expedition.’

Nixon, 418 U.S. at 699-700. To carry this burden, the moving party “must clear three

hurdles: (1) relevancy; (2) admissibility; (3) specificity.” Id. at 700. The defendants

argue that they have met this burden. The State argues that they have not.

The decision whether to enforce “a pretrial subpoena duces tecum must

necessarily be committed to the sound discretion of the trial court since the necessity for

the subpoena most often turns upon a determination of factual issues.” Id., 418 U.S. at

702.

In Nixon, the Special Prosecutor handling the indictment of John N.

Mitchell, H. R. Haldeman, John D. Ehrlichman, Charles W. Colson, Robert C. Mardian,

Kenneth W. Parkinson, and Gordon Strachan on charges of conspiracy to defraud the

United States and obstruction of justice caused to be issued a subpoena directed at

President Nixon, who had been named in the indictment as an unindicted co-conspirator,

to produce “in advance of the September 9 trial date . . . certain tapes, memoranda,

papers, transcripts or other writings relating to certain precisely identified meetings

between the President and others.” Nixon, 418 U.S. at 686, 689. “The Special Prosecutor

was able to fix the time, place, and persons present at these discussions because the

White House daily logs and appointment records had been delivered to him.” Id. at 689.

13

Given that Tennessee Rule of Criminal Procedure 17 is adapted from and therefore similar to

Federal Rule of Criminal Procedure 17, we see no reason to treat the application of our rule any

differently. See State v. Lori A. Little, No. M1999-00858-CCA-R3-CD (Tenn. Crim. App., Nashville,

Nov. 22, 2000) (stating that Tennessee Rule of Criminal Procedure 17 “is essentially identical to the

federal counterpart in the Federal Rules of Criminal Procedure”).

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The Supreme Court determined that although “the contents of the subpoenaed tapes could

not at that stage be described fully by the Special Prosecutor,” the evidence offered by the

Special prosecutor in the form of “the sworn testimony or statements of one or more of

the participants in the conversations as to what was said at the time” as well as “the

identity of the participants and the time and place of the conversations,” evinced “a

sufficient likelihood that each of the tapes contains conversations relevant to the offenses

charged in the indictment.” Id. at 700. The Court also concluded that the Special

Prosecutor had made “a sufficient preliminary showing that each of the subpoenaed tapes

contains evidence admissible with respect to the offenses charged in the indictment.” Id.

In addition to “valid potential evidentiary uses” for the requested materials, the Supreme

Court noted that “the analysis and possible transcription of the tapes may take a

significant period of time,” which supported their being produced prior to trial. Id. at

702.

With this foundation, we turn to the present case.

With regard to relevancy, the evidence presented by the defendants

supports a conclusion that the four witnesses named in the subpoenas communicated

electronically, either via text message or social media, about the party where the events

transpired and the offenses themselves. Although the defendants cannot describe fully

the contents of the electronic communications, the ubiquitous nature of electronic

communication and the type of “smart phones” used to send text messages and engage in

social media, see Riley v. California, 134 S. Ct. 2473, 2484 (2014) (observing that

“modern cell phones . . . are now such a pervasive and insistent part of daily life that the

proverbial visitor from Mars might conclude they were an important feature of human

anatomy”), coupled with the admissions by various witnesses about their electronic

communications relevant to the offenses, “permit a rational inference that at least part of

the conversations relate to the offenses charged in the indictment,” Nixon, 418 U.S. at

700.

With regard to admissibility, we observe, as did the Court in Nixon, that the

requested communications are “a collection of out-of-court statements by declarants who

will not be subject to cross-examination.” Id. That being said, the rules of evidence do

not bar the admission of all out-of-court statements so long as they fit within an exception

to the hearsay rule. Additionally, as was the case in Nixon, the requested materials “may

also be admissible for the limited purpose of impeaching the credibility of” any witness

who testifies at trial. Id. at 701 (observing that “[g]enerally, the need for evidence to

impeach witnesses is insufficient to require its production in advance of trial” but pretrial

production is justified when “there are other valid potential evidentiary uses for the same

material” and the production “may take a significant period of time”).

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This brings us to the demand included in the subpoenas that C.C. and Ms.

Lawn produce their cellular telephones for inspection and examination. Nothing at the

hearing on the defendants’ motion suggested that the defendants were seeking production

of the cellular telephones themselves, and the trial court made no findings in this regard.

The defendants presented no evidence of a need for production of the cellular telephones.

Indeed, the evidence presented at the hearing and other evidence included in the record

indicates that both women had replaced their cellular telephone handsets within days of

one another in January 2015 and that C.C. had sold her old handset online, despite

expressing to the police that the handset was not in working order, and that Ms. Lawn had

disposed of hers as well. Based on these facts, the defendants have failed to establish that

pretrial production of the cellular telephone handsets is likely to produce relevant,

admissible evidence.14

Finally, we observe that although the defendants’ arguments, both in their

motion and at the hearing, suggested subpoenas for the production of electronic

communications about the offenses made during the period of time surrounding the

offenses and the ensuing investigation, the subpoenas actually issued in this case lack that

same specificity. The subpoenas request from the social media providers and the four

witnesses every piece of both content-related and non-content-related electronic

communications generated by the four witnesses for the 18-month period prior to the

issuance of the subpoenas. This broad, general request spanning a lengthy and open-

ended time frame finds no support in either the case law or the record. As indicated, the

defendants have established that some of the witnesses’ electronic communications are

likely to contain relevant, admissible evidence. The relevant time frame for the

14

We also question whether the type of inspection of the cellular telephone handsets

contemplated by the subpoenas in this case is permissible via a Rule 17 subpoena following the Supreme

Court’s decision in Riley. There, the Court observed that “[t]oday . . . it is no exaggeration to say that

many of the more than 90% of American adults who own a cell phone keep on their person a digital

record of nearly every aspect of their lives—from the mundane to the intimate,” Riley, 134 S. Ct. at 2490

(citing Ontario v. Quon, 560 U.S. 746, 760 (2010)), and concluded that the government could not search

the contents of a cellular telephone seized incident to an arrest without either obtaining a search warrant

or proving that exigent circumstances required the warrantless search of the phone:

Modern cell phones are not just another technological convenience.

With all they contain and all they may reveal, they hold for many

Americans “the privacies of life.” The fact that technology now allows

an individual to carry such information in his hand does not make the

information any less worthy of the protection for which the Founders

fought. Our answer to the question of what police must do before

searching a cell phone seized incident to an arrest is accordingly

simple—get a warrant.

Riley, 134 S. Ct. at 2494-95.

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electronic communications of Ms. Lawn, Ms. Boland, and Ms. Tavares, based upon the

evidence and argument presented at this stage in the proceedings, would be the period

beginning the day of the party and ending when the witnesses were cautioned by the KPD

to avoid discussing the offenses on social media. Because of the nature of the

relationship alleged between C.C. and Mr. Johnson, the relevant time frame for her

electronic communications would be broader, spanning from the beginning of their

relationship until she closed her social media accounts.

In summary, the defendants established, under the Nixon standard, an

entitlement to pretrial production of the electronic communications of each of the

witnesses within the above-described relevant time frames. Because the subpoenas

actually issued lack specificity as discussed, rendering them overly broad, we would have

concluded that the subpoenas should be modified to require the production only of those

materials as outlined above had we not previously concluded that the State lacked

standing to challenge the subpoenas.

B. From Whom Can the Defendants Obtain Information?

Having determined what the defendants are entitled to, we now consider

from whom they may acquire it.

1. Service Providers

In the trial court, the social media providers responded to the subpoena by

letter stating that the terms of the Stored Communications Act (“SCA”), which is part of

the Electronic Communications Protection Act (“ECPA”), forbade the disclosure of the

contents of the witnesses’ electronic communications to the defendants via a Rule 17

subpoena. The record does not contain any objections from either AT&T or YikYak.

AT&T did indicate via letter that it did not possess any electronic communications.

YikYak indicated that it would comply with the subpoenas. None of the providers joined

the State’s motion to quash. The trial court concluded that the State lacked standing to

challenge the subpoenas to the service providers, and we agree with this ruling, as we

held above. Because the trial court found that the State lacked standing to challenge

those subpoenas, those subpoenas remain intact, and the court did not consider the

application of the SCA at the November 3 hearing that is the subject of this interlocutory

appeal. The trial court did, however, conclude following the August 24, 2015 hearing

that the defendants could obtain the electronic communications from the service

providers under the terms of the SCA. As we indicated before, we are addressing those

issues for which the record is adequate for our review both to promote judicial efficiency

in this case, which has already been pending for more than two years, and to facilitate

potential further appellate review. For those same reasons and to provide guidance to the

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trial court upon remand, we will address the application of the SCA to the subpoenas

issued to the service providers in this case.

The trial court, the parties, and the providers assumed without analysis that

the SCA applied to the social media communications requested by the defendants. As we

discuss more fully below, the application of the SCA to these communications is not

quite so clear.

“The privacy of stored Internet communications in the United States is

governed by” the SCA, which “was enacted in 1986 as part of the Electronic

Communications Privacy Act.” Orin S. Kerr, A User’s Guide to the Stored

Communications Act, and A Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev.

1208 (2004). Because electronic communication development has far outpaced the

development of the law in the area of constitutionally-based privacy protections for those

communications, Congress passed the SCA to bridge the gap by “creat[ing] a set of

Fourth Amendment-like privacy protections by statute, regulating the relationship

between government investigators and service providers in possession of users’ private

information.” Id. at 1212. The SCA accomplishes this by limiting “the government’s

ability to compel providers to disclose information in their possession about their

customers and subscribers” and by limiting “the ability of [internet service providers] to

voluntarily disclose information about their customers and subscribers to the

government.” Id. at 1212–13. “The SCA provides privacy protection to communications

held” in electronic storage by “providers of electronic communication service . . . and

providers of remote computing service.” Id. at 1213–14.15

“The Stored Communications Act is best understood by considering its

operation and purpose in light of the technology that existed in 1986” because it “is not

built around clear principles that are intended to easily accommodate future changes in

technology; instead, Congress chose to draft a complex statute based on the operation of

early computer networks.” William Jeremy Robison, Free at What Cost?: Cloud

Computing Privacy Under the Stored Communications Act, 98 Geo. L.J. 1195, 1204–05

(2010). For this reason, it is necessary to understand how computing operated at that

time in order to understand how the SCA might be applied to more recent innovations

such as social media networks.

The United States Code defines “electronic communication service”

(“ECS”) as “any service which provides to users thereof the ability to send or receive

wire or electronic communications.” 18 U.S.C. § 2510(15). Electronic storage is both

15

As the author points out, “the distinction that the SCA draws reflects the technology of the

1980s.” Id. at 1213.

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“any temporary, intermediate storage of a wire or electronic communication incidental to

the electronic transmission thereof” and “any storage of such communication by an

electronic communication service for purposes of backup protection of such

communication.” Id. § 2510(17). Because “Congress explored” the ECS category

“primarily through the lens of early electronic mail systems,” which “[a]t the time, . . .

operated through a fragmented delivery system in which communications were slowly

transmitted between the computer servers operated by e-mail providers,” the resulting

definition of electronic storage is “rather odd” and “much narrower than its name

suggests.” Robison, supra, 1205-06.

The Code defines “remote computing service” (“RCS”) as “the provision to

the public of computer storage or processing services by means of an electronic

communications system.” Id. § 2711(2). “Congress created” this category “to address

third-party service providers that offered ‘sophisticated and convenient computing

services to subscribers and customers from remote facilities.’” Robison, supra, 1206

(quoting S. REP. NO. 99-541, at 10 (1986), reprinted in 1986 U.S.C.C.A.N. 3555). At

the time Congress adopted the SCA, “outsourced computing was a service marketed to

‘businesses of all sizes--hospitals, banks and many others,’ rather than individual

consumers,” and, as a result, “[t]he requirements for RCS precisely describe the nature of

the commercial relationship that existed at the time of the Act’s adoption between the

outsourced computing providers and their business clientele.” Robison, supra, 1207.

A few remaining definitions are in order. Electronic communication is

defined as

any transfer of signs, signals, writing, images, sounds, data, or

intelligence of any nature transmitted in whole or in part by a

wire, radio, electromagnetic, photoelectronic or photooptical

system that affects interstate or foreign commerce, but does

not include—

(A) any wire or oral communication;

(B) any communication made through a tone-only

paging device;

(C) any communication from a tracking device (as

defined in section 3117 of this title); or

(D) electronic funds transfer information stored by a

financial institution in a communications system used for the

electronic storage and transfer of funds.

18 U.S.C. § 2510(12). “‘[G]overnmental entity’ means a department or agency of the

United States or any State or political subdivision thereof.” Id. § 2711(4). “‘[C]ontents’,

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when used with respect to any wire, oral, or electronic communication, includes any

information concerning the substance, purport, or meaning of that communication.” Id. §

2510(8).

The SCA makes it a crime for anyone to “intentionally access[] without

authorization a facility through which an electronic communication service is provided”

or “intentionally exceed[] an authorization to access that facility” and use that access to

“obtain[], alter[], or prevent[] authorized access to a wire or electronic communication

while it is in electronic storage in such system.” Id. § 2701(a). This provision is

inapplicable “to conduct authorized . . . by the person or entity providing a wire or

electronic communications service; . . . by a user of that service with respect to a

communication of or intended for that user; or . . . in section 2703, 2704 or 2518 of this

title.” Id. § 2701(c).

Code section 2702, which regulates the voluntary disclosure of information

provides, in pertinent part, as follows:

(a) Prohibitions.--Except as provided in subsection (b) or (c)--

(1) a person or entity providing an electronic

communication service to the public shall not knowingly

divulge to any person or entity the contents of a

communication while in electronic storage by that service;

and

(2) a person or entity providing remote computing service

to the public shall not knowingly divulge to any person or

entity the contents of any communication which is carried

or maintained on that service--

(A) on behalf of, and received by means of electronic

transmission from (or created by means of computer

processing of communications received by means of

electronic transmission from), a subscriber or customer

of such service;

(B) solely for the purpose of providing storage or

computer processing services to such subscriber or

customer, if the provider is not authorized to access the

contents of any such communications for purposes of

providing any services other than storage or computer

processing; and

(3) a provider of remote computing service or electronic

communication service to the public shall not knowingly

divulge a record or other information pertaining to a

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subscriber to or customer of such service (not including

the contents of communications covered by paragraph (1)

or (2)) to any governmental entity.

(b) Exceptions for disclosure of communications.-- A

provider described in subsection (a) may divulge the contents

of a communication--

(1) to an addressee or intended recipient of such

communication or an agent of such addressee or intended

recipient;

(2) as otherwise authorized in section 2517, 2511(2)(a), or

2703 of this title;

(3) with the lawful consent of the originator or an

addressee or intended recipient of such communication, or

the subscriber in the case of remote computing service;

....

(c) Exceptions for disclosure of customer records.--A

provider described in subsection (a) may divulge a record or

other information pertaining to a subscriber to or customer of

such service (not including the contents of communications

covered by subsection (a)(1) or (a)(2))--

(1) as otherwise authorized in section 2703;

(2) with the lawful consent of the customer or subscriber;

....

Id. § 2702(a)-(c). Section 2703, which governs compelled disclosure of electronic

communications, provides:

(a) Contents of wire or electronic communications in

electronic storage.--A governmental entity may require the

disclosure by a provider of electronic communication service

of the contents of a wire or electronic communication, that is

in electronic storage in an electronic communications system

for one hundred and eighty days or less, only pursuant to a

warrant issued using the procedures described in the Federal

Rules of Criminal Procedure (or, in the case of a State court,

issued using State warrant procedures) by a court of

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competent jurisdiction. A governmental entity may require

the disclosure by a provider of electronic communications

services of the contents of a wire or electronic communication

that has been in electronic storage in an electronic

communications system for more than one hundred and

eighty days by the means available under subsection (b) of

this section.

(b) Contents of wire or electronic communications in a

remote computing service.--(1) A governmental entity may

require a provider of remote computing service to disclose the

contents of any wire or electronic communication to which

this paragraph is made applicable by paragraph (2) of this

subsection--

(A) without required notice to the subscriber or customer,

if the governmental entity obtains a warrant issued using

the procedures described in the Federal Rules of Criminal

Procedure (or, in the case of a State court, issued using

State warrant procedures) by a court of competent

jurisdiction; or

(B) with prior notice from the governmental entity to the

subscriber or customer if the governmental entity--

(i) uses an administrative subpoena authorized by a

Federal or State statute or a Federal or State grand jury

or trial subpoena; or

(ii) obtains a court order for such disclosure under

subsection (d) of this section;

except that delayed notice may be given pursuant to

section 2705 of this title.

(2) Paragraph (1) is applicable with respect to any wire or

electronic communication that is held or maintained on that

service--

(A) on behalf of, and received by means of electronic

transmission from (or created by means of computer

processing of communications received by means of

electronic transmission from), a subscriber or customer of

such remote computing service; and

(B) solely for the purpose of providing storage or

computer processing services to such subscriber or

customer, if the provider is not authorized to access the

contents of any such communications for purposes of

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providing any services other than storage or computer

processing.

(c) Records concerning electronic communication service or

remote computing service.--(1) A governmental entity may

require a provider of electronic communication service or

remote computing service to disclose a record or other

information pertaining to a subscriber to or customer of such

service (not including the contents of communications) only

when the governmental entity—

(A) obtains a warrant issued using the procedures

described in the Federal Rules of Criminal Procedure (or,

in the case of a State court, issued using State warrant

procedures) by a court of competent jurisdiction;

(B) obtains a court order for such disclosure under

subsection (d) of this section;

(C) has the consent of the subscriber or customer to such

disclosure;

(D) submits a formal written request relevant to a law

enforcement investigation concerning telemarketing fraud

for the name, address, and place of business of a

subscriber or customer of such provider, which subscriber

or customer is engaged in telemarketing (as such term is

defined in section 2325 of this title); or

(E) seeks information under paragraph (2).

(2) A provider of electronic communication service or remote

computing service shall disclose to a governmental entity the-

(A) name;

(B) address;

(C) local and long distance telephone connection records,

or records of session times and durations;

(D) length of service (including start date) and types of

service utilized;

(E) telephone or instrument number or other subscriber

number or identity, including any temporarily assigned

network address; and

(F) means and source of payment for such service

(including any credit card or bank account number),

of a subscriber to or customer of such service when the

governmental entity uses an administrative subpoena

authorized by a Federal or State statute or a Federal or State

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grand jury or trial subpoena or any means available under

paragraph (1).

(3) A governmental entity receiving records or information

under this subsection is not required to provide notice to a

subscriber or customer.

(d) Requirements for court order.--A court order for

disclosure under subsection (b) or (c) may be issued by any

court that is a court of competent jurisdiction and shall issue

only if the governmental entity offers specific and articulable

facts showing that there are reasonable grounds to believe that

the contents of a wire or electronic communication, or the

records or other information sought, are relevant and material

to an ongoing criminal investigation. In the case of a State

governmental authority, such a court order shall not issue if

prohibited by the law of such State. A court issuing an order

pursuant to this section, on a motion made promptly by the

service provider, may quash or modify such order, if the

information or records requested are unusually voluminous in

nature or compliance with such order otherwise would cause

an undue burden on such provider.

18 U.S.C. § 2703(a)-(d).

Importantly, the SCA draws a distinction between content, “the

communication that a person wishes to share or communicate with another person,” and

non-content, “information about the communication that the network uses to deliver and

process the content information” such as basic subscriber information. Kerr, supra,

1227-28. Kerr explains that “[t]he rules for compelled disclosure operate like an upside-

down pyramid” such that “[t]he higher up the pyramid you go, the more information the

government can obtain.” Id. at 1222.

At the lowest threshold, only a simple subpoena is needed to

compel basic subscriber information. Higher up the pyramid,

a 2703(d) order compels all noncontent records. A simple

subpoena combined with prior notice compels three

categories of information: basic subscriber information, plus

any opened e-mails or other permanently held files (covered

by the RCS rules), plus any contents in temporary “electronic

storage” such as unretrieved e-mails in storage for more than

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180 days. A 2703(d) order plus prior notice is sufficient to

compel all noncontent records, plus any opened e-mails or

other permanently held files (covered by the RCS rules), plus

any contents in temporary “electronic storage” such as

unretrieved e-mails in storage for more than 180 days. Put

another way, a 2703(d) order plus prior notice compels

everything except contents in temporary “electronic storage”

180 days or less. Finally, a search warrant is needed to

compel everything stored in an account.

Id. at 1222-23 (footnotes omitted); see also Matter of Warrant to Search a Certain E–

Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197, 207-08 (2d

Cir. 2016) (hereinafter “Microsoft”).16 “Data stored by a remote computing service

(RCS) . . . receives fewer privacy protections than communications held by an ECS.”

Robison, supra, 1208.

Because the framework created in the SCA relies entirely on 1986

computing technology, determining the precise scope of its application to the type of

social media communications at issue in this case presents difficulties. See Konop v.

Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002) (observing that application of

the SCA “‘is a complex, often convoluted, area of the law’” and that “the existing

statutory framework is ill-suited to address modern forms of communication”). Those

16

The Second Circuit Court of Appeals echoed Kerr’s observation that section 2703 “sets up a

pyramidal structure governing conditions under which service providers must disclose stored

communications to the government.” The court explained,

Basic subscriber and transactional information can be obtained simply

with an administrative subpoena. Other non-content records can be

obtained by a court order (a “§ 2703(d) order”) . . . . The government

may also obtain some user content with an administrative subpoena or a

§ 2703(d) order, but only if notice is provided to the service provider’s

subscriber or customer. § 2703(b)(1)(B). To obtain “priority stored

communications” (our phrase), as described below, the Act generally

requires that the government first secure a warrant that has been issued

“using the procedures described in the Federal Rules of Criminal

Procedure,” or using State warrant procedures, both of which require a

showing of probable cause. Priority stored communications fall into two

categories: For electronic communications stored recently (that is, for

less than 180 days) by an ECS, the government must obtain a warrant. §

2703(a). For older electronic communications and those held by an

RCS, a warrant is also required, unless the Government is willing to

provide notice to the subscriber or customer.”).

Microsoft, 829 F.3d at 207-08.

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courts faced with the issue have concluded that the SCA is applicable to social media

sites and that the SCA prohibits social media sites “from disclosing nonpublic contents

without the user’s consent.” Steven S. Gensler, Special Rules for Social Media

Discovery?, 65 Ark. L. Rev. 7, 26–28 (2012); see also Matter of Application of State for

Commc’ns Data Warrants To Obtain the Contents of Stored Commc’ns From Twitter,

Inc., From Users @ _ & @ _, ESS-147-CDW-16 & ESS-148-CDW-16., No. A-3651-

15T4, 2017 WL 476218, at *7 (N.J. Super. Ct. App. Div. Feb. 2, 2017) (observing that

“courts have uniformly concluded that communications sent to social media platforms or

even private websites are clearly ‘electronic communications’ under the” SCA). The

nuances of that application, however, have varied based upon the facts and circumstances

of each individual case. For example, in Crispin v. Christian Audigier, Inc., the court

concluded that the SCA applied to Facebook but that Facebook was an ECS as to some

electronic communications on Facebook and an RCS as to others. See Crispin v.

Christian Audigier, Inc., 717 F. Supp. 2d 965, 980-82 (C.D. Cal. 2010). In Ehling v.

Monmouth-Ocean Hosp. Serv. Corp., the court concluded that “Facebook wall posts that

are configured to be private meet all four criteria” to qualify as electronic

communications held by an ECS. Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F.

Supp. 2d 659, 667 (D.N.J. 2013). Other courts have concluded without detailed analysis

that the SCA applies to social media websites and that those sites may not produce

information except as provided by the SCA. See, e.g., People v. Harris, 945 N.Y.S.2d

505, 511 (Crim. Ct. 2012) (“If you look at the purpose and method of Twitter, it is clear

to this court that Twitter is a service provider of electronic communication.”).

We agree with those courts that have concluded that the SCA is applicable

to communications shared on social media websites. Thus, the defendants could only

obtain the witnesses’ communications from the social media providers if they satisfied

the terms of the SCA. Analyzing the defendants’ requests using the pyramidal structure

outlined above, we easily conclude that the defendants cannot obtain the contents of the

witnesses’ social media accounts from the social media providers via a Rule 17 subpoena

because the SCA requires a warrant to obtain those communications. Microsoft, 829 F.3d

at 207-08 (“For electronic communications stored recently (that is, for less than 180 days)

by an ECS, the government must obtain a warrant. For older electronic communications

and those held by an RCS, a warrant is also required, unless the Government is willing to

provide notice to the subscriber or customer.” (citations omitted)); see also Ryan A.

Ward, Discovering Facebook: Social Network Subpoenas and the Stored

Communications Act, 24 Harv. J.L. & Tech. 563, 568 (2011) (“[T]he government cannot

obtain content information from public ECS or RCS providers without a search

warrant.”).

To obtain any information other than “[b]asic subscriber and transactional

information,” which “can be obtained simply with an administrative subpoena,”

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Microsoft, 829 F.3d at 207, the defendants had to show that (1) a defendant in a criminal

case qualifies as a “governmental entity” under the terms of the SCA and (2) that the

subpoena and order issued in this case satisfies the requirements of Code section 2703(d).

Marc J. Zwillinger, Christian S. Genetski, Criminal Discovery of Internet

Communications Under the Stored Communications Act: It’s Not A Level Playing Field,

97 J. Crim. L. & Criminology 569, 587–88 (2007) (stating that “the court order exception

contained in 18 U.S.C. § 2703(d) pertains only to the government and comes into play

only when a governmental entity ‘offers specific and articulable facts showing that there

are reasonable grounds to believe that the contents of a wire or electronic communication

. . . are relevant and material to an ongoing criminal investigation.’ By definition, no

criminal defendant or party to civil litigation could make this showing.”). At least one

court has concluded that “[t]he SCA provides no direct mechanism for access by a

criminal defendant to private communication content.” Facebook, Inc. v. Superior Court,

192 Cal. Rptr. 3d 443, 450, review granted and opinion superseded sub nom. Facebook v.

S.C., 362 P.3d 430 (Cal. 2015). Another court has concluded that “the Office of the

Federal Public Defender is not a ‘government entity’ within the meaning of § 2703.”

United States v. Amawi, 552 F. Supp. 2d 679, 680 (N.D. Ohio 2008). Observing that the

SCA defines that term “as ‘a department or agency of the United States or any State or

political subdivision thereof,’” the Amawi court concluded that “[t]he judiciary is not a

department or agency of the United States; thus, the judiciary and its components,

including the Federal Public Defender, cannot obtain a court order under § 2703(d).” Id.;

see also Zwillinger, supra, 594 (“The purpose and plain text of the SCA make clear that

the exceptions for governmental entities apply only to Fourth Amendment government

actors--investigative agencies and prosecuting attorneys-- and not to criminal defendants,

irrespective of whether they happen to be represented by a publicly funded criminal

defender’s office.”). The Amawi court also observed that the SCA “distinguishes

between courts, which issue orders, and government entities, which can apply for orders.”

Id. We find this reasoning sound. Consequently, we would have held, had the issue been

justiciable, that the defendants could not obtain any information directly from the social

media providers under the terms of the SCA because they do not meet the definition of

“governmental entity.” See 18 U.S.C. § 2711(4) (“‘[G]overnmental entity’ means a

department or agency of the United States or any State or political subdivision thereof.”);

id. at § 2703(d) (stating that a court of competent jurisdiction may issue an order upon an

application by a governmental entity); see also Zwillinger, supra, at 584 (“None of the[]

exceptions [in the SCA] provide a basis for a disclosure in response to a subpoena served

by a criminal defendant, nor a court order secured at the defendant’s request.”).17

2. Witnesses

17

We caution that our review of the SCA in this part is limited to the issue that has thus far arisen in the

present case. We do not mean to suggest that the SCA passes constitutional scrutiny in all respects.

-43-

Although the defendants cannot obtain the witnesses’ electronic

communications directly from the social media providers, nothing prevents them from

obtaining the information as outlined above directly from the witnesses themselves. See

John G. Browning, Digging for the Digital Dirt: Discovery and Use of Evidence from

Social Media Sites, 14 SMU Sci. & Tech. L. Rev. 465, 473 (2011) (“The most effective

methods of obtaining discovery of the contents of a party’s social networking profile are

propounding specific, well-tailored discovery requests to the party himself . . . .”). By its

terms, the SCA places limitations only on the service providers and not on the users of

social media websites. See 18 U.S.C. § 2702(a); § 2703(a). The vast majority of cases

make it clear that the type of electronic communications sought in this case fall clearly

within the ambit of civil discovery when obtained from the account holder or user, and

we see no reason that the same information should not also be available to criminal

defendants via a Rule 17 subpoena, provided that they are able to make the showing

required by Nixon.

Although courts have indicated that privacy considerations may be

implicated when dealing with electronic communications, see, e.g., United States v.

Warshak, 631 F.3d 266, 283-88 (6th Circ. 2010), a privacy claim cannot place those

communications totally beyond the reach of a criminal defendant who has shown that the

communications are likely to contain relevant, material evidence. To hold otherwise

would be to apply a sort of privilege to electronic communications that does not exist for

other forms of communication, a privilege that would serve only “to withhold evidence

that is demonstrably relevant in a criminal trial” and “cut deeply into the guarantee of due

process of law and gravely impair the basic function of the courts.” Nixon, 418 U.S. at

712. “Certain exemptions from” providing evidence “are recognized by all courts,”

“[b]ut every such exemption is grounded in a substantial individual interest which has

been found, through centuries of experience, to outweigh the public interest in the search

for truth.” Bryan, 339 U.S. at 332. As the Supreme Court observed,

We have elected to employ an adversary system of criminal

justice in which the parties contest all issues before a court of

law. The need to develop all relevant facts in the adversary

system is both fundamental and comprehensive. The ends of

criminal justice would be defeated if judgments were to be

founded on a partial or speculative presentation of the facts.

The very integrity of the judicial system and public

confidence in the system depend on full disclosure of all the

facts, within the framework of the rules of evidence. To

ensure that justice is done, it is imperative to the function of

courts that compulsory process be available for the

-44-

production of evidence needed either by the prosecution or by

the defense.

Nixon, 418 U.S. at 709. Privileges erected by the Court to place evidence beyond the

reach of compulsory process “are designed to protect weighty and legitimate competing

interests. . . . Whatever their origins, these exceptions to the demand for every man’s

evidence are not lightly created nor expansively construed, for they are in derogation of

the search for truth.” Id. at 709-10. Even where a privilege exists, such as in the case of

the presidential communications at issue in Nixon, “[t]he generalized assertion of

privilege must yield to the demonstrated, specific need for evidence in a pending criminal

trial.” Id. at 713.

The defendants have satisfied the Nixon requirements with regard to those

electronic communications falling within the relevant time frames outlined above. No

evidence suggests that the witnesses enjoy a blanket privilege with regard to their

electronic communications.18

Moreover, we disagree with the trial court’s finding that the subpoenas

issued to the witnesses were oppressive. First, the evidence relied on by the court to

support this finding, the letter from Ms. Boland’s mother, does not indicate anything

more than a minor difficulty in obtaining the requested information experienced by one

of the witnesses. Ms. Boland’s mother complained to the assistant district attorney via

email that Ms. Boland and her parents had had to spend several hours during a weekend

visit attempting to comply with the subpoena. We hardly think this too onerous a burden

when juxtaposed with the defendants’ constitutional trial rights. When put in perspective,

the expense of a few hours’ time and a few dollars are less than “oppressive.” Courts

have recognized that complying with that “fundamental maxim that the public . . . has a

right to every man’s evidence,” Bryan, 339 U.S. at 332, will necessarily involve

“personal sacrifice” but that the sacrifice “is a part of the necessary contribution of the

individual to the welfare of the public,” even when “onerous,” Blair, 250 U.S. at 281.

Conclusion

We hold that the State lacks standing to challenge the subpoenas issued to

C.C., Ms. Lawn, Ms. Boland, and Ms. Tavares. The State also lacks standing to

challenge the subpoenas issued to any of the service providers in this case. Accordingly,

we affirm in part and reverse in part the trial court’s November 3 order.

18

We note that although Federal Rule of Criminal Procedure 17 places additional requirements

on requests for “the production of personal or confidential information about a victim,” see generally Fed.

R. Crim. P. 17(c), Tennessee Rule of Criminal Procedure 17 does not contain similar requirements.

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_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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