Some Content Receives Stronger Protection

Emails, Voicemails, and Other Communications Content Stored by Your Communications Providers Receive Stronger Protection

Compared to the relatively weak protection for non-content records, the law gives some extra protection to communications content that you have stored with (or that is otherwise stored by) communications service providers like your phone company, your ISP, or an email provider like Gmail or Hotmail. Your communications providers cannot disclose your stored communications to the government unless the government satisfies the requirements described below; nor can they disclose your stored communications to anyone other than the government without your permission. There is one notable exception, though, for serious emergencies: if the provider believes in good faith that not immediately disclosing the communications could lead to someone’s death or serious injury, they can give them to the government.

Note, however, that these restrictions on the disclosure of your communications only apply to communications providers that offer their services to the public. Even more worrisome, the government doesn’t consider businesses or schools and universities that offer their employees and students service to be offering services to the public, and therefore considers them unprotected by the Stored Communications Act. That means they could get communications from those entities with only a subpoena, and maybe even just a polite request if your employee agreement or your school's privacy policy allows it.

The Stored Communications Act strongly protects communications that have been in 'electronic storage' for 180 days or less, but the government has a very narrow reading of what 'electronic storage' means in the statute. The government doesn't consider already-read or opened incoming communications to be in electronic storage (for example, emails in your inbox that you've already looked at, or voicemails in your voicemail account that you've saved after listening). Nor does the government consider messages in your sent box or messages in your drafts box to be in 'electronic storage.' Under the government's view, here's how your communications are treated under the law:

New unopened communications: If the email or voice-mail messages are unopened or unlistened to, and have been in storage for 180 days or less, the police must get a search warrant. However, you are not notified of the search.

Opened or old communications: If you have opened the stored email or voice-mail messages, or they are unopened and have been stored for more than 180 days, the government can use a special court order — the same “D” orders discussed — or a subpoena to demand your communications. Either way, the government has to give you notice (although, like with sneak & peek search warrants, that notice can sometimes be delayed for a substantial time, and as far as we can tell almost always is delayed). However, the police may still choose to use a search warrant instead of a D order or subpoena, so they don’t have to give you notice at all.

Notably, the Ninth Circuit Court of Appeals has disagreed with the government's reading of the law, finding that communications are in electronic storage even after they are opened — meaning that the government needs a warrant to obtain opened messages in storage for 180 days or less.

In sum, although the law sometimes requires the government to get a warrant before accessing communications you’ve stored with your communication provider, it doesn’t always. For this reason, storing your communications on your own computer is preferable — the government will almost always need a warrant if it wants to seize and search the files on your computer.

Назад | Дальше