The Stored Communications Act and Emails: An Overview (4/25/15)

I have just posted a guest blog entry on the Microsoft Appeal in In re Warrant to Search a Certain E-Mail Account, 15 F. Supp. 3d 466 (S.D.N.Y. 2014), here,  appeal docketed, No. 14-2985 (2d Cir. Aug. 12, 2014).  Peter D. Hardy and Carolyn H. Kendall, Guest Blog on Stored Communications Act Reach to Cloud Storage Outside the U.S. (Federal Tax Crimes Blog 4/25/15), here.  The case is very important and the discussion an excellent introduction to the issues presented in the case.

The case arises from the Stored Communications Act (SCA), 18 USC 8 U.S.C. §§ 2701-2712.  I thought I would offer here a broader introduction to the SCA.  The following is from a draft of a larger publication that I recently worked on.  I omit the the footnotes but will provide links to the key cases and statutes in the following discussion.  I also omit the discussion of the issue which Peter and Carolyn discuss in the earlier blog entry:

Emails 

Emails have played and will continue to play a prominent role in the larger prosecutions for white collar (including tax) crimes. In many cases, they are the mother lode for investigators and prosecutors.

If the Government wants emails stored on a target’s or subject’s computers, it can obtain them from the target or subject voluntarily (often not likely), by subpoena or summons, or by search warrant. Similarly, if the Government wants a target or subject’s emails stored on the systems of an entity with whom the target or subject is related (e.g., by employment relationship), it can obtain them from the entity if the entity cooperates, or, if not, by compulsory process such as subpoena or summons, or by search warrant.  A target or subject may, however, use unrelated third-party electronic communications services, such as Gmail or Hotmail, for email needs.  Emails stored with that third party are available to the target or subject who can provide them to the Government, but the Government may not be able to obtain that cooperation, so the issue is whether and how the Government may gain access to the emails from the provider of the service. Normally, under the Third-Party Doctrine, the Government may obtain records in the hands of a third party (i.e., not the target or subject who is being investigated) by the third party’s voluntary surrender or by compulsory process (subpoena or summons) to the third party without a search warrant.   This doctrine, if applicable, would provide the Government fairly easy access to emails stored with email services such as Gmail and Hotmail.

Recognizing potential privacy concerns with electronic communications, Congress enacted the Stored Communications Act  providing users privacy protections, with sanctions, for electronic communications stored with electronic communications services (“ECS”).   In giving these protections, Congress also provided for Government access under the following rules in § 2703, here:

• By subpoena (investigative or trial subpoena, including an administrative subpoena (a subset of which is the IRS summons)) to the ECS:   (i) basic subscriber and transactional information;  and (ii) contents of communications in electronic storage with a ECS for more than 180 days.  
• By § 2703(d) Order  issued by a court when the Government provides “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation:”(i) all records subject to production by subpoena;  and (ii) any other any other “record or other information” concerning a user other than “the contents of communications,” such as historical logs of the email addresses in contact with the user. 
• By SCA Warrant issued by a court under the probable cause showing procedures for search warrants under the Federal Rules of Criminal Procedure:  (i) all records subject to production under a § 2703(d) order (and therefore also a subpoena); and (ii) contents of communications in electronic storage with a provider for fewer than 181 days, 

The subpoena and the § 2703(d) Order require prior notice to the subscriber or customer, but the SCA Warrant does not.

In summary, the SCA permits the summons or subpoena process without an SCA Warrant for the contents of emails stored over 180 days; an SCA Warrant is required only where the Government seeks contents of emails of 180 days or less.

In United States v. Warshak, 631 F3d 266 (6th Cir. 2010), here, reh'g and reh'g en banc denied, 2011 U.S. App. LEXIS 5007 (6th Cir. 2010).  the Government used the § 2703 subpoena to obtain the contents emails stored over 180 days and subsequently used a § 2703(b) Order to obtain the contents of additional emails.  The Sixth Circuit undertook a Fourth Amendment analysis and found that such electronic communications had the required expectation of privacy even though in the possession of a third party service provider.  Electronic communications, the Court reasoned, had the characteristics of other forms of communication, such as letters, to which Fourth Amendment protections apply.   The Court concluded

Accordingly,  we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP. . . . The government may not compel a commercial ISP to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak's emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.  

The IRS subsequently indicated by Policy Statement -- IRS Policy Statement 4-120, 1.2.13.1.37  (05-03-2013) (May 3, 2013), here -- that it will abide by Warshak and will require the use of a “search warrant” for all emails, regardless of the length of their storage.   As of this writing, other courts have not spoken directly on the email issue, but the few that have addressed the Fourth Amendment issue in analogous contexts use a similar analysis as to the reasonable expectation of privacy and the Fourth Amendment.

In practical effect, the SCA Warrant is “not a conventional [search] warrant” but instead, “a hybrid: part search warrant and part subpoena,” since it does not require forced or compulsory entry into the premises of the party to whom it is issued, instead relying principally on the ECS to gather the data required by the SCA warrant.  [This was the analysis of the Magistrate Judge in the Microsoft case, but does not address the issue as to whether the SCA Warrant can have extraterritorial effect, the subject of Peter and Carolyn's guest blog.]