For at least the second time in recent memory, a person’s life potentially hinges on critical information that is being withheld by a social platform. Joseph Colone, a man accused of murder and sentenced to death in Texas in 2017, is seeking code stored on GitHub, which could show that key evidence in his case was flawed. The company has declined to share it. After years of winding through the courts, Colone’s last hope rests on the U.S. Supreme Court, if it decides to hear his case.
Colone, who was indicted in 2010, hopes to investigate a program used to analyze DNA presented as evidence of guilt. In 2017, an expert witness for the prosecution testified that a victim’s blood was found in Colone’s car, as well as a mixture of Colone’s and the victim’s DNA on a glove near the crime scene. As Colone’s Supreme Court petition notes, the prosecution depended on a probabilistic genotyping program, STRmix, because examiners were unable to make a determination using traditional techniques. It also notes that, though this was the first time STRmix was used in a Texas death penalty trial, Colone’s attorneys neglected to examine the underlying technology.
Following the sentencing, the Texas court granted Colone an out-of-state subpoena to obtain the program’s source code from GitHub, headquartered in California. The company refused to provide it, and California courts refused to enforce it.
Colone’s attorneys were unable to speak with Gizmodo due to ongoing litigation. When asked for comment a GitHub spokesperson told us: “This is a difficult case for all involved, but federal law prohibits platforms like GitHub from handing over customer content. We again urge Mr. Colone’s advisers to come to an agreement directly with the software owner for review of the code in this case.”
Colone’s defense team did ask STRmix’s attorneys for access to the source code. But email records show that the two teams clashed over the terms of a strict NDA protecting STRmix’s intellectual property, which Colone’s team argued made “unfair and unreasonable” demands that constricted them from properly reviewing the code and producing evidence. The defense expert refused to sign the NDA, and a Texas judge also refused to sign off on STRmix’s protective order because it barred the court from oversight of the review.
It makes sense that GitHub wouldn’t comply with the subpoena against STRmix’s wishes. Losing the faith of a large company by sharing intellectual property is bad for business.
Both GitHub and California courts are sticking by tech companies’ traditional hardline interpretation of an arcane 1986 privacy law the Stored Communications Act (SCA). While the SCA makes a provision for government entities, like the police, to demand electronic communications, it doesn’t make the same exception for civilians—giving prosecutors a leg up while kneecapping defense teams.
Arguably, GitHub’s interpretation of the SCA infringes on a defendant’s rights as repeatedly upheld by the Supreme Court itself. As Chief Justice John Roberts wrote in a 2020 decision about Trump’s attempts to evade subpoenas: “In our judicial system, the public has a right to every man’s evidence.”
In response to the denial, Colone argued that the omission shouldn’t matter because the SCA doesn’t specifically create an evidentiary privilege, the right to refuse to testify or disclose information. It’s unclear whether lawmakers in 1986 intentionally excluded that right for civilians or simply didn’t foresee a world in which a deleted Instagram post would contain potentially life-saving information.
As a result of the law enforcement exception, Facebook alone honors hundreds of thousands of government requests for user data annually—roughly 296,000 in 2020. Meanwhile, social media companies have spent years fending off defendants’ court-approved subpoenas, even when they’re aware that the consequence could be a death sentence. In 2019, a Superior Court judge who approved one such subpoena in a murder trial excoriated the companies. “Facebook and Twitter appear to be misusing their immense resources to manipulate the judicial system in a manner that deprives two indigent young men facing life sentences of their constitutional right to defend themselves at trial,” Judge Charles Crompton wrote. “Facebook and Twitter have made it clear that they are unwilling to alter their behavior, regardless of the harm to others — or the rulings of this court.” Crompton found them in contempt of court for disobeying a lawful order, and the companies simply ate the maximum $1,000 fines, a penalty that was likely cheaper than paying their lawyers to do another hour of work.
If the Supreme Court decides to hear the case and rules in Colone’s favor, it could stand to not only potentially save Colone’s life but spare countless underprivileged people years of unjust incarceration.
Elizabeth Daniel Vasquez, a special forensic science counsel at Brooklyn Defender Services, told Gizmodo that it is “the rare case” when information stored by Facebook or in iCloud or similar data isn’t requested, collected, and brought up in discovery by prosecutors. Resource-strapped public defenders, on the other hand, know Facebook and others’ elite legal teams will deplete their time which could otherwise be spent making progress on other cases. “Often the feeling is if there’s information stored in a social media account, it’s lost,” Daniel Vasquez said.
“It’s hard to look someone in the eye and say, ‘I want you to sit here in jail for six, eight, 12 months while I try to maybe get these records,’ knowing that I probably am going to end up in a position where a court could say that I’m not entitled to them,” Vasquez said. During that indefinite lag, the client might be offered a limited-time plea deal. “And when you go into that balance, you’re going to choose the thing that makes the most sense in your life and that gets you out of detention faster.”
Digital evidence could be useful in definitively proving that someone else committed the crime (which was precisely the case for Iraqi refugee Omar Ameen) or determining that a victim posed an immediate violent threat (in the case of a drive-by shooting). It could also help identify biases and impeach witness credibility. Jeffrey Stein, a civil rights attorney and former public defender, pointed Gizmodo to a case years ago in which the defense team found racist statements in a police officer’s public Facebook posts. The proof of bias cast doubt on the officer’s credibility, which was central to the case against the accused, who was Black. If the officer had simply made the page private (as, Stein pointed out, is far more common now amongst police officers), they most likely would have gone without critical evidence.
If it sounds a little like asking Facebook for information as broad as attitudes (even racist ones) could lead to widespread user privacy breaches, Stein emphasized that subpoenas are not new, and they are limited.
“You can’t just run around serving subpoenas,” he said. “The law requires you to present articulable facts to the judge, to establish that it’s not just a Hail Mary and that you have a reason to believe that there will be relevant evidence.” That would necessarily mean that you’d have to ask for details about a specific incident in a narrow timeframe, he added. The recipient can argue that it’s overbroad and move to narrow or quash it. If the information is delivered, he further noted, the judge reviews it to decide whether it’s relevant. If it’s not, the judge can withhold the content from the defense.
In other words, no, a defense attorney can’t poke around in your entire social media history. But even if a subpoena were a blank check, would you want prosecutors to be the only people who have that power?
Blase Schmid-Kearney, senior trial attorney at the Neighborhood Defender Service, said that after years of fighting social media companies’ hardline stance on the SCA, he sees a little progress. He pointed to the high-profile extradition case of Omar Ameen, who was framed for the murder of an Iraqi police officer, despite obtaining a printout (but not the digital imprint) of a Facebook post showing others taking credit for the killing. “There were a lot of people litigating it, raising awareness, and keeping a sharp eye on what our Bill of Rights says,” Schmid-Kearney told Gizmodo. “People who are accused of crimes have a right to a trial. We shouldn’t accept a wholesale denial from a big company based on something that seems to be wrong and flatly contradicted by the Sixth Amendment.”
Yet again, public defenders, and their clients, will have to hope and wait. The Supreme Court is set to discuss whether to hear Colone’s case on June 10th; if they do, it would move forward in the next session beginning in October. The court selects roughly one in 100 cases before it each term.