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This gets muddled quickly. What are “stored communications”? Does this refer to the store and forward nature of the Internet? Does email that has received a subscriber’s system but is not opened fall under this? What about after the email has been opened?
“Stored communications” is defined at 18 U.S.C. § 2510(17).
(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
(B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.
"Transient electronic storage that is intrinsic to the communication process for such communications" is "electronic communications," not stored communications. [Councilman 2005][Blumofe 21 ] [Hall 503 n. 1]
- An email in temporary, transient electronic storage during transmission is an email during transmission. [Councilman 2005]
- An email that that is stored on an ISP server awaiting download by a subscriber is a “stored communication.” [Councilman Slip 31 2005 ("The first category, which is relevant here, refers to temporary storage, such as when a message sits in an e-mail user's mailbox after transmission but before the user has retrieved the message from the mail server.")] [Steve Jackson 461]
- An email that has been opened by a subscriber is not stored communications . [Fraser]
- Webmail that remains on the service provider computer might be stored. [Fischer]
- Voice mail can be stored communication – but this provision sunsets December 31, 2005. [Smith] [Councilman 2005]
- A cookie is not “stored communications.” [Doubleclick 511-12] [Chance] [Intuit]
Rule:
- For electronic communications that has been stored, but not opened, for less than 181 days, the government must first obtain a warrant to obtain those messages. 18 U.S.C. § 2703(a).
- If the electronic communications has been opened (or for other stored files), the government may send the ISP a subpoena with notice to the subscriber in advance of the search. 18 U.S.C. § 2703(a) & (b).
- If the electronic communications is held by a remote communications service provider on behalf of a subscriber or customer of the remote computing service, the law enforcement official may obtain access to the stored communications
- Without notice to the subscriber with a court issued warrant; 18 U.S.C. § 2703(b)(1)(A).
- With notice to the subscriber with a subpoena or a 2703(d) court order. 18 U.S.C. § 2703(b)(1)(B).
See also 18 U.S.C. § 2704 Backup Preservation for 18 U.S.C. § 2703(b)(2) electronic communications disclosure. But see the Federal Records Acts, requiring certain government email to be stored at the National Archives and made publicly available.
Compare Warshak (6th Cir) (requiring warrant for access to email)
Notice: Generally notice must be given to the subscriber or customer whose communication is being intercepted. 18 U.S.C. § 2703(b)(1). In certain situations, such as endangerment to life or public safety, risk of flight from persecution, destruction of or tampering with evidence, or intimidation of witnesses, the government can delay notice to the subscriber for 90 days. 18 U.S.C. § 2705(a). Delayed notice is permitted where there is "execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result." 18 U.S.C. § 2705(a). [Villegas] At the end of the delayed period, notice must be provided to the individual. 18 U.S.C. § 2705(a)(5).
Sec. 2703(d) Order: An officer may seek to obtain information using a higher Section 2703(d) order. In this situation, an officer generally with have authority to obtain information to the same degree as a subpoena. If the officer seeks delayed notice, the legal standard is similar. The difference is that the representation is made to a court as opposed to a supervisory official. 18 U.S.C. § 2705(a)(1)(A), 18 U.S.C. § 2705(a)(2). [Compare Warshak (6th Cir) (requiring warrant for access to email)]
Geographic Scope: Previously, a search warrant could only compel the disclosure of content within the district of the issuing court. As the Internet constitutes the death of distance and geographic distinctions, legal authority only good locally was a bit of a problem, obligating law enforcement officers to apply again and again in different jurisdictions to get after the same email. The Patriot Act rectified this problem for law enforcement officers by making search warrants nationwide in reach. In other words, the authority of a federal court in Massachusetts is valid for an ISP in Arizona. 18 U.S.C. § 2703(a); 2711(3). This provision sunsets on December 31, 2005.
“Current law requires the government to use a search warrant to compel a provider to disclose unopened e-mail. 18 U.S.C. § 2703(a). Because Federal Rule of Criminal Procedure 41 requires that the ‘property’ to be obtained ‘be within the district’ of the issuing court, however, the rule may not allow the issuance of § 2703(a) warrants for e-mail located in other districts. Thus, for example, where an investigator in Boston is seeking electronic e-mail in the Yahoo! account of a suspected terrorist, he may need to coordinate with agents, prosecutors, and judges in the Northern District of California, none of whom have any other involvement in the investigation. This electronic communications information can be critical in establishing relationships, motives, means, and plans of terrorists. Moreover, it is equally relevant to cyber-incidents in which a terrorist motive has not (but may well be) identified. Finally, even cases that require the quickest response (kidnappings, threats, or other dangers to public safety or the economy) may rest on evidence gathered under § 2703(a). To further public safety, this section accordingly authorizes courts with jurisdiction over investigations to compel evidence directly, without requiring the intervention of their counterparts in other districts where major Internet service providers are located.”
Administration's Draft Anti-Terrorism Act of 2001, Hearing Before the House Comm. on the Judiciary, 107th Cong., 1st Sess. 54, §108 (2001). |
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