Stored Communications Act: Practical Considerations

By: Michael E. Lackey and Oral D. Pottinger, Myer Brown LLP

The Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., governs the disclosure of electronic communications stored with technology providers. Passed in 1986 as part of the Electronic Communications Privacy Act (ECPA), the SCA remains relevant to address issues regarding the privacy and disclosure of emails and other electronic communications.

AS THE USE OF TECHNOLOGY CONTINUES TO GROW, SO does the importance of the SCA’s protections–and limits–on the disclosure of stored electronic communications. The SCA’s age, however, makes it difficult to apply in modern times. This article provides guidance on how to apply the SCA to today’s fast-growing technology.

Understanding How SCA Issues Arise

As a privacy statute, diverse circumstances can give rise to SCA issues:

• Direct liability. As discussed below, the SCA limits the ability of certain technology providers to disclose information. It also limits third parties’ ability to access electronic communications without sufficient authorization. Litigation alleging violations of the SCA’s substantive provisions therefore directly presents SCA issues
• Civil subpoena limitations. Because of the SCA’s restrictions on disclosure, technology providers and litigants often invoke the SCA when seeking to quash civil subpoenas to technology providers for electronic communications.¹
• Government investigations. The SCA provides a detailed framework governing law enforcement requests for electronic communications. SCA issues often arise in motions to suppress and related criminal litigation. For example, a growing number of courts have found that the SCA is unconstitutional to the extent that it allows the government to obtain emails from an internet service provider without a warrant in violation of the Fourth Amendment. See U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010).

Additionally, the circuit conflict about whether technology providers and litigants can invoke the SCA when quashing criminal subpoenas or search warrants requesting data from extraterritorial servers, was resolved by the passage of the CLOUD Act as part of the Consolidated Appropriations Act, 2018, H.R. 1625, Div. V, 115th Cong., 2d Sess. (2018). The Act provides that a service provider must produce information within its “possession, custody, or control, regardless of whether such . . . information is located within or outside of the United States.” CLOUD Act § 103(a). The passage of the CLOUD Act also rendered moot the U.S. v. Microsoft case pending before the Supreme Court on this issue. See U.S. v. Microsoft Corp., No. 17-2, slip op. at 3 (April 17, 2018) (dismissing the appeal as moot). The government has subsequently obtained a new warrant against Microsoft for the information requested in the original warrant at issue in the case.

Categorizing the Technology Involved in an SCA Claim

The technology behind an SCA claim matters. In many instances, the applicable SCA rules hinge on the particular technology involved. Specifically, different SCA rules apply depending on whether technology is classified as electronic communication services (ECS), remote computing services (RCS), both, or neither.

The following sections discuss the definitions of ECS and RCS, the rules applicable to each, and certain applications of these definitions. While you should familiarize yourself with these concepts, you must exercise caution in applying them. Courts have reached disparate results, and this area continually evolves with each new technological development.

To read the full practice note in Lexis Practice Advisor, follow this link.

Michael E. Lackey leads Mayer Brown LLP’s global litigation and dispute resolution practice, serves on the firm’s Partnership Board, and is a co-leader of its Electronic Discovery & Information Governance group. His practice focuses on civil and criminal litigation, and he represents major companies and individuals in state and federal proceedings, including multi-district and class action litigation. In addition to being an accomplished litigator, Mike is nationally recognized for his knowledge of electronic discovery issues. Oral D. Pottinger is a senior associate in the Antitrust practice at Mayer Brown. He specializes in mergers and acquisitions, civil and criminal antitrust investigations, antitrust counseling, and Federal Communications Commission cable and media representation. Oral has served as a trusted advisor addressing the needs of corporate clients from information risk management and dataretention planning to discovery planning, e-discovery collection, data analytics, managed electronic review, and production. Special acknowledgment is provided to Sasha Keck, Mayer Brown associate, for her research assistance.

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1. See Viacom Int’l Inc. v. YouTube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) (quashing subpoena), aff’d in part on other grounds, vacated in part on other grounds, 676 F.3d 19 (2d Cir. 2012); In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 611 (E.D. Va. 2008); O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (2006).