Welcome back for another week of What's Next, where we report on the intersection of law and technology. Here's what we've got for you today:

>> Do criminal defendants have a constitutional right to users' private social media messages to defend themselves?

>> An appeals court could decide whether litigants have to download Uber's app—and of course, agree to the company's arbitration agreement—to sue the company over discrimination.

>> Zoom is hit with another privacy lawsuit after a disturbing intrusion on a virtual bible study class.

Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

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SCOTUS Kicks Can on Criminal Defendants' Access to Social Media

The U.S. Supreme Court denied Facebook's petition for certiorari in a case where a California state court held Facebook and Twitter in contempt after the social media giants refused to hand over users' private communications to help criminal defendants build their defense.

Back in 2014, Derrick Hunter and Lee Sullivan, who were indicted on murder, weapons and gang-related charges, subpoenaed the tech companies to help them prove allegations that a man who died in a fatal shooting, threatened on social media and in person to kill Hunter's 14-year-old brother. The two men argued Facebook's refusal to hand over users' communications violated their Sixth Amendment and due process rights.

Facebook's Gibson, Dunn & Crutcher attorneys challenged the July 2019 contempt order from San Francisco Superior Court Judge Charles Crompton under the Stored Communications Act (SCA), which social media companies have invoked to quash subpoenas brought by criminal defendants and protect user privacy.

"The California court's decision erodes the trust in the privacy of electronic communications instilled by the SCA. It prioritizes a criminal defendant's desire to obtain communications from whatever source she prefers—often without the knowledge of the people whose communications are at issue—despite the wishes of social media users who sent the messages and have not consented to sharing them," wrote the Gibson Dunn attorneys in the petition.

A few days after Gibson Dunn filed Facebook's cert petition, California's First District Court of Appeal found that the defendants did not show the requisite finding of good cause for production of the private communications. An order directing the state court to quash the subpoenas has yet to be handed down, because Sullivan's counsel at the Law Office of Bicka Barlow and San Francisco attorney Susan Kaplan petitioned the California Supreme Court to review the decision.

In the time the case has bounced around the state's court system, Hunter and Sullivan went to trial. Sullivan was convicted on all counts, and Hunter was acquitted.

Although the nation's highest court won't weigh in on the issue, the California Supreme Court heard a case this week referenced in the Court of Appeal's decision, as a potential vehicle for clarity on the issue.

In Facebook v. Superior Court (Touchstone), criminal defendant Lance Touchstone is seeking the social media messages of a shooting victim to help exonerate him of an attempted murder charge. The case has garnered amicus support from Apple and Google.

Gibson Dunn's Joshua Lipshutz, who serves as Facebook's counsel in both Touchstone and the Hunter case, said that the underlying context in Touchstone is squarely governed by the court's decision in Hunter—that the SCA inhibits the disclosure of users' private messages and demands that defendants pursue alternative means to access the material.

Justice Mariano-Florentino Cuéllar asked Lipshutz if the SCA did not apply and the whole case turned on the question of good cause, how should the trial court proceed?

"We wouldn't be here," Lipshutz said, noting that the Facebook content would be "cumulative and duplicative" after the court unsealed recent declarations supporting the good cause issue. "Facebook's only interest in this case is that federal law prohibits them from turning over the information."

Lipshutz also asked the court not to remand the case on the good cause issue. Chief Justice Tani Cantil-Sakauye said that whether the parties go back to court on the good cause issue, she said "this is likely not the last Facebook case we are going to see here in California, particularly at the Supreme Court. You understand that, right?"

An Exercise in Futility?

Do people who know that a platform doesn't cater to their disability have to download the free app to sue the company for discrimination?

That's what the U.S. Court of Appeals for the Ninth Circuit is set to decide after hearing virtual arguments Thursday alleging Uber's failure to extend its wheelchair accessible vehicle service to New Orleans violates the Americans With Disabilities Act.

Ninth Circuit Judge Ryan Nelson said he wanted to put all the facts on the table. His first question—and roughly second, third, fourth and fifth question—to Public Justice's Karla Gilbride was if the only reason the plaintiffs did not download the app was to avoid the arbitration agreement in its terms of service. Largely sidestepping the question, Gilbride said that downloading the app would have been a futile gesture since no wheelchair accessible vehicles, a service Uber dubs as UberWAV, would have been available, and that being deterred from downloading is the injury.

"In full candor, I think you have a pretty good argument here," Nelson said. "I just want to know is there anything here on futility? Do we need to look at the futile act and say there's some part of that act that would be discriminatory?"

U.S. District Judge Frederic Block of the Eastern District of New York, who sat on the Ninth Circuit panel, seemed to think so. He asked Uber's counsel Bryan Killian at Morgan, Lewis & Bockius in Washington, D.C., why demanding plaintiffs to download the app when there are no cars available to them isn't a futile gesture. "That seems to be epitome of a futile gesture," the judge said.

Killian said the ride-hailing company is facing suits throughout the United States from people who have never signed up for the app, and therefore, never agreed to the arbitration agreement within its terms of service.

"We have a word for people who don't download the app, they're not Uber users," Killian said, eliciting laughs from the panel, which also included Judge John Clifford Wallace.

Wallace voiced his concerns over a potential circuit split after Killian pointed to a UberWAV case that the U.S. Court of Appeals for the Seventh Circuit dismissed for lack of Article III standing since the plaintiff didn't download the app.

"I'm sure you know we don't create conflicts with other circuits unless it's absolutely necessary," Wallace said, asking Killian to alert the panel to any other relevant circuit decisions in the future.

The video conference, however, came to an abrupt end after Killian's feed froze mid-argument.

"We lost him," Nelson said. "He seemed like he was about ready to hit a homerun."

Saint Paulus Lutheran Church in San Francisco sued Zoom after a hacker infiltrated its virtual bible study and subjected participants to pornography, including images that depicted abuse of children.

The lawsuit, brought by Bottini & Bottini and Cotchett, Pitre & McCarthy on behalf of Saint Paulus Lutheran Church, is part of a growing number of legal actions against Zoom, which has gained more than 2.2 million new active users this year. The company's privacy and security practices have come under heightened scrutiny as the platform has emerged as a crucial tool for remote communication during the COVID-19 pandemic.

"In our current situation, we rely on platforms like Zoom to socialize, work and, as here, pray together remotely," said Mark Molumphy of Cotchett Pitre in Burlingame. "I can't imagine a more horrific violation of privacy than that experienced by Saint Paulus and its bible study class."

Judge Davila Preliminarily Approves $500M Apple Throttling Settlement U.S. District Judge Edward Davila said objectors could raise concerns later, prior to a hearing on final approval, which he suggested could be in December. In approving the settlement, he emphasized that he welcomed Joseph Cotchett's statements on any matters involving the case. "The court finds counsel will continue to represent and prosecute this case vigorously," Davila said. "The court finds there are no conflicts that impair the representing of the class in this matter." Read more from Amanda Bronstad here.

Could Contact Tracing in the COVID-19 Era Become Unreasonable Search? "It sounds good, but if you're a criminal defendant, it could be horrific. You could find yourself kissing rights guaranteed to you under the constitution goodbye. Think of all the ways your personal information could be used, starting with providing your exact location to law enforcement when it lacks probable cause for a search warrant. It's no stretch to envision searches and seizures that would otherwise run afoul of Fourth Amendment protections arising out of contact tracing." Read more from Lara Yeretsian here.

Uber Sues to Force Arbitration in Wrongful Death Suit Involving Man Shot by Driver "The Uber driver at the time of this unfortunate homicide had a documented history of alleged violence, and I am sure Uber will do everything they can to hide this case and story from the public," said David Adams of Parnall & Adams Law. "As attorneys that believe in deterrence and the influence of the justice system on the general public, we will challenge their motion so James' story doesn't go untold." Read more from Ross Todd here.

Thanks for reading. We will be back next week with more What's Next. Stay safe and healthy, everyone