*1 Currently pending before the court in the above-captioned case is Meta Platforms, Inc.’s (“Meta”)—formerly known as Facebook, Inc. (“Facebook”) and parent company of Instagram—Motions to Vacate Orders and Quash Subpoenas Duces Tecum (“Motions”) (ECF Nos. 62, 64) for records and communications associated with decedent's Facebook and Instagram accounts. For the foregoing reasons, the court grants Meta's Motions (ECF Nos. 62, 64) and vacates its Ex Parte Orders (ECF Nos. 53, 54), and quashes the subpoenas issued to Facebook and Instagram, respectively.

A. Factual Background

On or about July 19, 2017, Devante Glenn (“Defendant” or “Glenn”) allegedly distributed illegal drugs to decedent who ingested them and died. (Indictment at PageID #1, ECF No. 1.) Thereafter, on November 15, 2018, a Grand Jury indicted Defendant for his alleged actions on the following three Counts: (1) Distribution of Carfentanil in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); (2) Distribution of Carfentanil in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), including enhanced penalty for death or serious bodily injury resulting from the use of controlled substances; and (3) Use of a Communication Facility to Facilitate a Felony Drug Offense in violation of 21 U.S.C. § 843(b). (Id. at PageID #1–3.) Defendant filed an Unopposed Motion for Order to Issue Subpoenas (SEALED ECF No. 51) on September 13, 2021, asking the court to issue subpoenas for decedent's social media accounts from June 20, 2017 to July 20, 2017, to support his theory that decedent obtained the drugs that killed her from another source before she met him. (Mot. to Subpoena at PageID #300–303, ECF No. 51.) More specifically, Defendant maintained that he “anticipat[ed] that the requested communications [would] establish that the decedent purchased drugs from someone other than Mr. Glenn. Although the decedent abused drugs for an extended period of time, Mr. Glenn did not meet her until a few days before her death.” (Id. at PageID #302.) Defendant sought to subpoena the following social media companies: Google, Inc.; Facebook; Instagram; Snap Inc.; Match Group, Inc.; Twitter, Inc.; Bumble Trading Inc.; and Seeking Arrangement Reflex Media, Inc. (Id.) Accordingly, on September 14, 2021, the court issued Ex Parte Orders (ECF Nos. 52–59), to the requested social media companies—including Facebook and Instagram—subpoenaing decedent's social media communications from June 20, 2017 to July 20, 2017.

On October 22, 2021, Sean N. Johnson (“Johnson”), Meta's counsel, communicated Meta's concerns regarding the court's Facebook and Instagram subpoenas to Defendant's counsel, Edward G. Bryan (“Bryan”), explaining Meta's position as to why it believed that the subpoenas were improper. (Decl. at ¶ 4, ECF No. 64-1.) Johnson and Bryan spoke again on November 30, 2021, where Bryan explained Defendant's theory as to why the subpoenas were necessary to his case. (Id. at ¶ 6.) On December 2, 2021, and December 7, 2021, Johnson contacted Bryan and explained that Meta found that the decedent did not create any communications on her social media accounts during the time period in question. (Id. at ¶ 8.) Instead, Meta only found communications sent to decedent's account by other Facebook and Instagram users. (Id. at ¶ 9.) Despite Meta's discovery, Bryan still sought decedent's social media communications.

B. Procedural History

*2 The court issued Ex Parte Orders (ECF Nos. 53, 54) on September 14, 2021, to Facebook and Instagram respectively, for decedent's communications from June 20, 2017, to July 20, 2017. Meta filed its Motions to vacate the court's Orders and Quash Subpoenas Duces Tecum (ECF Nos. 62, 64) on December 9, 2021. Defendant filed his Opposition (ECF No. 74) to Meta's Motions (ECF Nos. 62, 64) on January 14, 2022. The court held a telephonic status conference (ECF No. 76) on January 18, 2022, where the parties briefed the court on their respective positions and Meta agreed to obtain the Facebook and Instagram usernames of the individuals contacted by decedent. (Order at PageID #553, ECF No. 76.) Thereafter, Meta identified those individuals’ usernames to Defendant and the court.

On March 23, 2022, Defendant filed a Supplemental Response (ECF No. 82), opposing Meta's Motions (ECF Nos. 62, 64), stating that the usernames Meta identified were insufficient to serve those individuals subpoenas under Federal Rule of Criminal Procedure 17(d), while reiterating his argument that his requested subpoenas were proper under Federal Rule of Criminal Procedure 17 (“Rule 17”) and the Sixth Amendment. (Resp. at PageID #577–78, ECF No. 82.) Meta filed a Reply (ECF No. 83) to Defendant's Supplemental Response (ECF No. 82) on April 1, 2022.

Under Federal Rule of Criminal Procedure 17(a), “a valid subpoena may command a witness to attend and testify.” United States v. Peavler, Case No. 3:15-CR-14, 2017 WL 1018304, at *1 (E.D. Ky. Mar. 10, 2017) (citing U.S. v. Llanez-Garcia, 735 F. 3d 483, 493 (6th Cir. 2013) (internal citations omitted). Although it is true that “Rule 17(a) does not prescribe a procedure for quashing witness subpoenas, courts routinely have entertained motions seeking such relief and decided them by reference to comparable principles.” Id. Particularly, “a subpoena ad testificandum survives scrutiny if the party serving it can show that the testimony sought is both relevant and material. Id. (quoting Stern v. U.S. Dist. Ct., 214 F.3d 4, 17 (1st Cir. 2000)). Under the “comparable principles” governing motions to quash the production of documents, “the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c)(2).

In its Motions (ECF Nos. 62, 64), Meta asserts three grounds for why the subpoenas should be quashed. First, Meta argues that the subpoenas violate Federal Rule of Criminal Procedure 17(c)(3) (“Rule 17(c)(3)”) and the Crime Victims’ Rights Act, 18 U.S.C. § 3771, because “[t]o Meta's knowledge, there was never any notice provided to the alleged victim's personal representative before the Decedent moved for and received two ex parte orders to issue the Subpoenas ...” (Mot. at PageID #465, ECF No. 64.) Second, Meta maintains that the subpoenas violate the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., because “[t]he SCA does not allow criminal defendants to compel service providers like Meta to produce the contents of communications with a subpoena or court order.” (Id. at PageID #465–66.) Finally, Meta contends that the subpoenas amount to a “fishing expedition” because “Meta has no communications created by the alleged victim during the relevant timeframe.” (Id.)

Defendant counters by maintaining that he properly subpoenaed the requested communications under Rule 17 and the Sixth Amendment. (Opp'n at PageID #544, ECF No. 74.) Defendant contends that Rule 17(c)(3) permits the court to issue ex parte subpoenas under exceptional circumstances, and this case presents exceptional circumstances because, “[t]he government does not object to the subpoenas, and there is no reason to believe that the decedent's family would assist Mr. Glenn in obtaining the records. The only source to guarantee a complete set of records, with authentication, is Meta.” (Id. at PageID #546.) Defendant also argues that the subpoenas are proper under the Sixth Amendment because they met the four criteria outlined in United States v. Nixon, 418 U.S. 683 (1974), and he has the compulsory right to obtain witnesses in his favor. (Id. at PageID #544–45.) Finally, Defendant asserts that the SCA does not supersede his Sixth Amendment rights and states that, “[t]o the extent that meta reads the SCA to bar criminal defendants from obtaining stored communications, the SCA is unconstitutional.” (Id. at PageID #547.) After considering the parties’ arguments and relevant case law, the court finds Meta's position well-taken.

A. Federal Rule of Criminal Procedure 17(c)(3)

*3 Rule 17(c)(3) states that:

Fed. R. Crim. P. 17(c)(3) (emphasis added). Rule 17(c)(3) implements the Crime Victims’ Right Act, 18 U.S.C. § 3771(a)(8). Fed. R. Crim. P. 17(c) advisory committee's note to 2008 amendment. 18 U.S.C. § 3771(e)(2) provides who notice must be given to under Rule 17(c)(3), stating that:

18 U.S.C. § 3771(e)(2).

In United States v. Llanez-Garcia, 735 F.3d 483, 498 (6th Cir. 2013), the Sixth Circuit stated that, “[Rule 17(c)(3)] further requires the court to give notice to the victim, who may then move to quash or modify the subpoena, or otherwise object to it.” Uniformly, federal courts have held that notice of a subpoena to a victim or their representatives is mandatory under Rule 17(c)(3) before a court may issue a subpoena. See United States v. Latimore, No. 08-CR-20633, 2010 WL 148231, at *2 (E.D. Mich. Jan. 11, 2010); United States v. Vanskike, No. 18–40055–HLT, 2019 WL 2137284, at *1, 3 (D. Kan. May 16, 2019) (stating that, “if [defendant] should have moved pursuant to Rule 17(c)(3), [the victim] was required to have been given notice of the subpoena so that she could have moved to quash or modify it, or otherwise object.”); United States v. Begay, No. CR 14–0747 JB, 2018 WL 401265, at *1, 12 (D.N.M. Jan. 12, 2018) (quashing its prior subpoenas and stating that, “[t]he court concludes that it should have required notice to [the victim] so that she could move to quash or to modify the subpoena or otherwise object.”); United States v. Levine, No. 17–CR–55V(Sr), 2019 WL 2097912, at *1, 2 (W.D.N.Y. May 14, 2019). Accordingly, here, decedent's representative should have been given notice of the subpoenas under Rule 17(c)(3). Defendant presents no evidence that decedent's representatives were notified before the court issued the subpoenas.

Defendant does not dispute Rule 17(c)(3)’s notice requirement. Instead, as previously noted, Defendant argues that this case presents an exceptional circumstance to depart from Rule 17(c)(3)’s notice requirement because, “[t]he government does not object to the subpoenas, and there is no reason to believe that the decedent's family members would assist [Defendant] in obtaining the records. The only source to guarantee a complete set of records, with authentication, is Meta.” (Opp'n at PageID #546, ECF No. 74.) The comments of Rule 17(c)(3) contemplate what constitutes an exceptional circumstance for departure from the rule's notice requirement, stating that:

Fed. R. Crim. P. 17(c) advisory committee's note to 2008 amendment. In United States v. Ray, 337 F.R.D. 561, 574–75 (S.D.N.Y. 2020), a district court considered whether exceptional circumstances existed under Rule 17(c)(3) to issue an ex parte subpoena without notice to the victim's representatives. The court began its analysis by noting that Rule 17(c)(3)’s notice requirement is mandatory and that, “[t]he party requesting authorization for the subpoena to be served also is responsible for ensuring that notice has been provided.” Id. Next, the court stated that:

Id. Ultimately, the court determined that the defendant had not demonstrated any exceptional circumstances to bypass Rule 17(c)(3)’s notice requirement. Id. Similarly, in this case, Defendant has not set forth any facts from which the court may infer that this is an exceptional circumstance to depart from Rule 17(c)(3)’s notice requirement. While Defendant has articulated his need for decedent's social media communications, he has not indicated his inability to provide notice to decedent's representatives, despite his best efforts. Instead, Defendant merely assumes that decedent's representatives will be uncooperative, stating that, “there is no reason to believe that the decedent's family members would assist [Defendant] in obtaining the records”. However, to the court's knowledge, Defendant has not attempted to notify decedent's representatives and his speculative allegations as to their cooperation is not enough for the court to determine that this case presents an exceptional circumstance to depart from Rule 17(c)(3)’s mandate. Accordingly, the court concludes that the issuance of the ex parte subpoenas to Meta without notice to decedent's representatives was error, and that this case does not constitute an exceptional circumstance to depart from Rule 17(c)(3)’s notice requirement.

B. The Stored Communications Act

Next, Meta argues that the court's issuance of the subpoenas to Facebook and Instagram was improper under the SCA because, “[t]he SCA does not allow private parties, including criminal defendants, to compel production of the contents of communications from a service provider like Meta with a subpoena or court order ... The SCA contains no exceptions for criminal defense subpoenas or orders obtained by criminal defendants.” (Mot. at PageID #469, ECF No. 64.) Defendant responds by reasoning that “[t]he [SCA] does not bar criminal defendants from exercising their rights to compulsory process ... To the extent that Meta reads the SCA to bar criminal defendants from obtaining stored communications, the SCA is unconstitutional.” (Opp'n at PageID #547, ECF No. 74.)

*5 The SCA states—with certain exceptions—that, “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 ...” 18 U.S.C. § 2702(a). Courts have routinely quashed subpoenas in criminal matters involving Meta under the SCA. United States v. Nix, 251 F.Supp.3d 555, 569 (W.D.N.Y. 2017) (stating that, “[p]reviously, Facebook, Inc. and Instagram LLC moved to quash two subpoenas served by [the defendant], and the Court granted that motion on the ground that [the SCA] does not permit a defendant in a criminal case to subpoena the content of a Facebook or Instagram account.”); e.g., United States v. Pierce, 785 F.3d 832, 842 (2d Cir. 2015); United States v. Wenk, 319 F.Supp.3d 828, 829 (E.D.Va. 2017); United States v. Meintzschel, No. 2:20–CR–00023–FL–1, 2020 WL 7340017, at *3 (E.D.N.C. Dec. 14, 2020). The SCA allows only the Government to seek electronically stored communications from internet providers. Id. The Supreme Court has held that a government entity may compel an internet provider to produce information under the SCA, consistent with the Fourth Amendment. See generally Carpenter v. United States, 138 S.Ct. 2206 (2018). A court within this district has held that public defenders do not qualify as a government entity under the SCA. See United States v. Amawi, 552 F.Supp.2d 679, 680 (N.D. Ohio 2008). This court agrees and accordingly determines that the SCA does not permit Defendant to subpoena Meta for information related to Decedent.

Defendant argues that the SCA violates his Sixth Amendment rights. (Opp'n at PageID #547, ECF No. 74.) Specifically, he asserts that, “[t]he Supreme Court in Nixon reiterated that a criminal defendant has constitutional rights to the production of all evidence [under the Sixth Amendment]” and therefore the SCA runs afoul of the constitution because under the SCA he would have no way to compel production of relevant information. (Id.) Defendant states that Meta's proposed remedy—to provide Defendant with the usernames of those individuals who communicated with decedent during that timeframe—“would undermine his constitutional right. Beyond being unnecessarily complicated, subpoenaing potential drug dealers for their communications is an ineffective way to compel production of relevant evidence ....” (Id. at PageID #548.) Defendant concludes his argument by maintaining that, “[t]he constitution does not require [him] to go through such machinations to obtain documents that are admittedly in Meta's possession.” (Id.)

Defendant's argument regarding the SCA's constitutionality fails. First, the SCA does not implicate Defendant's Sixth Amendment rights. Instead, it codifies Fourth Amendment-like protections for digital communications providers. See 18 U.S.C. § 2702; Carpenter v. United States, 138 S.Ct. 2206 (2018). Next, nothing in the SCA either prevents Defendant from his “compulsory process [of] obtaining witnesses in his favor” or deprives him of liberty without due process, as he argues. (Opp'n at PageID #547–48, ECF No. 74.) Moreover, Defendant's right to compulsory process is not unlimited. In Facebook, Inc. v. Wint, 199 A.3d 625, 633–34 (D.C. 2019), the court rejected arguments similar to those made in this case. (determining that the SCA did not run afoul of the defendant's Sixth Amendment right, stating that “we have found no decision concluding that the SCA's general prohibition of disclosure pursuant to criminal defendants’ subpoenas violated, or even raised a serious problem for, a criminal defendant's right to compulsory process.”). Additionally, Defendant still has a viable option to obtain the information he seeks in spite of the SCA. Meta previously agreed to provide Defendant with the usernames of those individuals who contacted decedent during the relevant time frame. (ECF No. 76.) Having been provided those usernames, Defendant still possesses the ability to obtain the information he seeks by subpoenaing those individuals users under Rule 17(a) and 17(c). To the extent that Defendant seeks information related to the decedent, he still must comply with Rule 17(c)(3)’s notice requirement. Thus, while the SCA prohibits Defendant's ability to subpoena Meta for the sought after communications, it does not leave him without alternative methods for the information he seeks. Accordingly, the court determines that Defendant's argument that the SCA is unconstitutional is not well-taken.

*6 The court concludes that its Ex Parte Orders (ECF Nos. 53, 54) were improper under Rule 17(c)(3) and that Defendant is prohibited from obtaining the requested information by the SCA, which the court finds is not unconstitutional. The court further notes that Meta has advised Defendant that decedent made no communications during the relevant time frame and has provided Defendant with the usernames of those individuals who communicated with decedent during the proscribed time period, so that those persons may be subpoenaed if Defendant wishes.

For the foregoing reasons, the court grants Meta's Motions (ECF Nos. 62, 64) and vacates its Ex Parte Orders (ECF Nos. 53, 54) and quashes its subpoenas issued to Facebook and Instagram.

IT IS SO ORDERED.