TEXT ME, MAYBE? DISCOVERY OF ELECTRONIC COMMUNICATIONS

UNDER THE STORED COMMUNICATIONS ACT

CLE Credit: 1.0 Sponsor: KBA Young Lawyers Division

Wednesday, June 12, 2019 11:50 a.m. – 12:50 p.m.

Combs-Chandler Galt House Hotel

Louisville, Kentucky

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TABLE OF CONTENTS

The Presenter .................................................................................................................. i

Text Me, Maybe? Discovery of Electronic Communications Under the Stored Communications Act ................................................ 1

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THE PRESENTER

Young-Eun Park Dinsmore & Shohl LLP 101 South Fifth St., Ste 2500 Louisville, Kentucky 40202 Young-eun.Park@dinsmore.com YOUNG-EUN PARK is an associate in the Louisville office of Dinsmore & Shohl LLP, practicing in the areas of business and commercial litigation, banking litigation, and fiduciary and estate litigation. Ms. Park received her B.A. from Grinnell College and her J.D. from the University of Kentucky College of Law. Prior to attending law school, Ms. Park received her teaching certificate from the Metropolitan State University of Denver and taught with the Denver Public Schools for three years.

mailto:Young-eun.Park@dinsmore.com

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TEXT ME, MAYBE? DISCOVERY OF ELECTRONIC COMMUNICATIONS UNDER THE STORED COMMUNICATIONS ACT

Young-Eun Park I. HISTORY OF THE STORED COMMUNICATIONS ACT

A. Codified in 18 U.S.C. Chapter 121 §§ 2701-2712

B. History and Purpose

1. Enacted in 1986. 2. Part of the Electronic Communications Privacy Act. 3. Created to “update and clarify Federal privacy protections and

standards in light of dramatic changes in new computer and telecommunications technologies,” and address potential threats to privacy due to the advent of remote computing operations and large databanks of stored electronic communications. S. REP. NO. 99-541, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3358.

• Specifically, Congress intended to give “Fourth Amendment-like privacy protections for communications made online because it was, and still remains, largely unclear whether traditional Fourth Amendment protections extend to the online context.” Borchert, Christopher J., et al. “Reasonable Expectations of Privacy Settings: Social Media and the Stored Communications Act,” 13 Duke L. & Tech. Rev. 36 (2015).

4. The Stored Communications Act protects information stored

electronically in the same manner as information stored locally.

C. Because the Stored Communications Act was enacted in 1986, prior to social media and text messaging services, courts across the country have struggled with applying and interpreting the language of the Stored Communications Act to social media and text messaging and other electronic communications services.

II. RELEVANT PROVISIONS OF THE STORED COMMUNICATIONS ACT

A. The Prohibitions of the Stored Communications Act

Except as provided in subsection (B) or (C) (outlined below):

1. A person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and

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2. A person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service –

a. On behalf of, and received by means of electronic

transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;

b. Solely for the purpose of providing storage or computer

processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and

3. A provider of remote computing service or electronic

communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.

B. Definitions

The Stored Communications Act separates “persons or entities” into two distinct categories: providers of “ECS” and “RCS.”

1. Individuals or entities providing an “electronic communication

service” (“ECS”). 18 U.S.C. §2702(a)(1).

a. “Electronic communication service” constitutes “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. §2510(15).

b. “Electronic communication.”

i. Includes both email and text messages. 18 U.S.C.

§2510(15). ii. Courts across the country have made various rulings

with respect to what constitutes the provision of “electronic communications services.”

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(a). Cellular phone and email service providers are providers of ECS.

(b). Facebook, MySpace, and Media Temple are

providers of ECS (Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010).

(c). Commercial online reservation system is not

an ECS (In re Jetblue Airways Corp. Privacy Litigation, 379 F.Supp.2d 299 (E.D.N.Y. 2005).

(d). Airline’s disclosure of passenger information

to NASA was not ECS (Copeland v. Northwest Airlines Corp., 2005 WL 2365255 (W.D. Tenn. Feb. 28, 2005).

(e). Website that was used by an employee to

chat with online psychics is an ECS (Glazer v. Fireman’s Fund Ins. Co., 2012 WL 1197167 (S.D.N.Y. 2012).

(f). Online investigation service is not an ECS

provider (Keithly v. Intelius Inc., 764 F.Supp.2d 1257 (W.D. Wash. 2011).

(g). LinkedIn is not an ECS, because email is not

related to website’s functionality (Low v. LinkedIn Corp., 900 F.Supp.2d 1010 (N.D. Cal. 2012).

iii. The above cases are just a small sample of the

decisions that courts have reached a decision regarding this issue.

2. Individuals or entities providing a “remote computing service.” 18 U.S.C. §2702(a)(2).

Are the following providers of an “electronic communications service”?

• AT&T

• Facebook

• LinkedIn

• Southwest Airlines

• Google

• 1-800-psychics.com

• Online investigation service site

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“Remote computing service” constitutes “the provision to the public of computer storage or processing services by means of an electronic communication system.” 18 U.S.C. §2711(2).

a. An “electronic communications system” includes electronic

devices used both for transmission of “wire or electronic communications” as well as “any computer facilities or related electronic equipment for the electronic storage of such communications.” 18 U.S.C. §2510(14).

i. Facebook and MySpace are providers of RCS because they provide storage services to the user at a remote location. Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010).

ii. Email services are providers of RCS. Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010).

iii. LinkedIn is not a provider of RCS – not a “virtual

filing cabinet.” Low v. LinkedIn Corp., 900 F.Supp.2d 1010 (N.D. Cal. 2012).

iv. Laptop or cell phone is not an RCS provider,

although contents of communications are stored on the device. Garcia v. City of Laredo, Tex., 702 F.3d 788 (5th Cir. 2012).

b. Keep in mind that certain service providers may be both

ECS and RCS providers. In such a case, the service provider must comply with requirements for both types of services.

3. “Content” – What is “content”?

Are the following providers of a “remote computing service”?

• Hotmail

• Google

• LinkedIn

• Facebook

• Your laptop

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a. Does not define “content” when used with respect to electronic communication, but a definition is found under the Federal Wiretap Act (see 18 U.S.C. §2711(1) (“the terms defined in section 2510 of this title [18 U.S.C. §2510] have, respectively, the definitions given such terms in that section”).

b. Information “containing the substance, purport, or meaning”

of a communication. 18 U.S.C. §2510(8).

i. The actual communication in an email or text message.

ii. Some courts have found the subject line of an email

message is content, because it is a summary of the actual email message. See, e.g., Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., 2013 WL 256771 (N.D. Cal. Jan. 23, 2013).

c. Some courts have determined the following is not content:

i. Identification of a subscriber. See, e.g., Jessup-

Morgan v. American Online, Inc., 20 F.Supp.2d 1105 (E.D. Mich. 1998); In re Zynga Privacy Litigation, 750 F.3d 1098 (9th Cir. 2014); Systems Products and Solutions, Inc. v. Scramlin, 2014 WL 3894385 (E.D. Mich. 2014).

ii. Metadata. See, e.g., Sys. Prods. & Solutions v.

Scramlin, 2014 WL 3894385 (E.D. Mich. 2014). iii. Cell site location information. See, e.g., Mintz v.

Mark Bartelstein & Associations, Inc., 885 F.Supp.2d 987 (C.D. Cal. 2012).

Are the following types of information considered “content” under the

Stored Communications Act?

• The words within a text message

• Identification of a subscriber

• Metadata

• Mailing address

• Telephone number

• Cell site location information

• IP addresses

• Subject line of an email message

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iv. IP addresses. See, e.g., TCYK, LLC v. Does 1-87, 2013 WL 5567772 (N.D. Ill. Oct. 9, 2013); Jessup-Morgan v. America Online, Inc., 20 F.Supp.2d 1105 (E.D. Mich. 1998).

C. Exceptions to the Prohibitions Allowing Disclosure

1. Disclosure of communications.

“Exceptions for disclosure of communications. A provider described in subsection (a) may divulge the contents of a communication –

a. to an addressee or intended recipient of such

communication or an agent of such addressee or intended recipient;

b. as otherwise authorized in section 2517, 2511(2)(a), or

2703 of this title [18 U.S.C. §2517, 2511(2)(a), or 2703]; c. with the lawful consent of the originator or an addressee or

intended recipient of such communication, or the subscriber in the case of remote computing service;

d. to a person employed or authorized or whose facilities are

used to forward such communication to its destination; e. as may be necessarily incident to the rendition of the service

or to the protection of the rights or property of the provider of that service;

f. to the National Center for Missing and Exploited Children, in

connection with a report submitted thereto under section 2258A [18 U.S.C. §2258A];

g. to a law enforcement agency –

if the contents –

i. were inadvertently obtained by the service provider;

and ii. appear to pertain to the commission or a crime;

h. to a governmental entity, if the provider, in good faith,

believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency; or

i. to a foreign government pursuant to an order from a foreign

government that is subject to an executive agreement that

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the Attorney General has determined and certified to Congress satisfies section 2523 [18 U.S.C. §2523].”

18 U.S.C. §2702(b)(1)-(9).

2. Disclosure of customer records.

“Exceptions for disclosure of customer records. A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2)) –

a. as otherwise authorized in section 2702 [18 U.S.C. §2702]; b. with the lawful consent of the customer or subscriber; c. as may be necessarily incident to the rendition of the service

or to the protection of the rights or property of the provider of that service;

d. to a governmental entity, if the provider, in good faith,

believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;

e. to the National Center for Missing and Exploited Children, in

connection with a report submitted thereto under section 2258A [18 U.S.C. §2258A];

f. to any person other than a governmental entity; or g. to a foreign government pursuant to an order from a foreign

government that is subject to an executive agreement that the Attorney General has determined and certified to Congress satisfies section 2523 [18 U.S.C. §2523].

18 U.S.C. §2702(c)(1)-(7).

Which of the following scenarios fall under the §2702(b) exceptions?

• Verizon receives a subpoena from Plaintiff requesting production of all text messages that Defendant received from a third party between July and August 2019. Must Verizon produce the text messages?

• Verizon, in the process of reviewing the text messages, notices that the text messages involve plans to rob a bank. Must Verizon produce the text messages?

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D. Penalties for Violation

1. The Stored Communications Act creates a civil cause of action for “knowing or intentional” violations of the law. 18 U.S.C. §2702(a).

2. However, “good faith reliance” on “a court warrant or order, a grand

jury subpoena, a legislative authorization, or a statutory authorization” is a complete defense to liability. 18 U.S.C. §2707(e)(1).

a. See e.g., Sams v. Yahoo! Inc., 713 F.3d 1175, 1177 (9th

Cir. 2013) (the SCA provides a “complete defense to any civil or criminal action” where the defendant can demonstrate that it produced documents in ‘good faith reliance on … a grand jury subpoena’”).

b. McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir. 2006)

(“good faith reliance on a subpoena is a complete defense to actions brought under the SCA”).

c. Long v. Insight Communications of Cent. Ohio LLC, 2014

WL 4425738 (N.D. Ohio Sep. 8, 2014), aff’d, 804 F.3d 791 (6th Cir. 2015) (“a defendant may invoke the good faith defense ‘if he can demonstrate (1) that he had a subjective good faith belief that he acted legally pursuant to a court order; and (2) that this belief was reasonable”).

III. CIVIL DISCOVERY UNDER THE STORED COMMUNICATIONS ACT

A. Relevant Rules of Civil Procedure

1. Federal Rule of Civil Procedure 34 (production of ESI). 2. Federal Rule of Civil Procedure 26 (discovery generally).

B. Important to consider the Stored Communications Act in the context of

discovery, as more and more parties routinely seek discovery of electronic communications, including social media and text messages.

C. Most issues arise with respect to civil, not criminal, subpoenas. 18 U.S.C.

§2703(c) states that providers of ECS may only give subscriber information if the government has a warrant. No confusion or conflict in this provision.

D. The Stored Communications Act applies to subpoena requests issued to

nonparties, e.g., third-party subpoenas.

1. None of the exceptions to the Stored Communications Act “explicitly authorize a service provider to divulge the contents of a communication pursuant to a subpoena or court order.” Flagg v. City of Detroit, 252 F.R.D. 346, 349 (E.D. Mich. 2008).

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a. See, e.g., In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D. Va. 2008) (observing that “the statutory language of the Stored Communications Act does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas”).

b. U.S. Internet Service Providers Ass’n, “Electronic Evidence

Compliance – A Guide for Internet Service Providers,” 18 Berkeley Tech. L.J. 945, 965 (2003) (noting that none of the exceptions set forth in section 2702(b) “expressly permits disclosure pursuant to a civil discovery order” obtained by a private party).

2. Section 2702(b)(3) does create an exception for lawful consent.

E. Lawful Consent

1. The following may each give consent for either the ECS or RCS

provider to divulge the contents of the communication:

a. Originator; b. Addressee; c. Intended recipient; or d. Subscriber to the RCS holding the communication.

18 U.S.C. § 2702(b)(3).

2. While unclear, it appears that the consent must be explicit, or some other affirmative action must be taken showing intent to consent.

a. See, e.g., Elcometer, Inc. v. TQC-USA Inc., 2013 U.S. Dist.

LEXIS 135437, 2013 WL 5346382 (E.D. Mich. Sep. 23, 2013) (denying motion to compel third party to produce defendants’ email despite defendants’ unresponsiveness).

To which of the following subpoenas may the provider lawfully respond?

• Plaintiff serves a third-party subpoena on Facebook to produce

all Facebook messages between Plaintiff and Defendant.

• Defendant serves a third-party subpoena on Facebook to

produce all Facebook messages between Plaintiff and a third

party.

• Plaintiff serves a third-party subpoena on T-Mobile to produce

text messages that a third party sent to Plaintiff, but due to lack

of service, failed to send.

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b. Bower v. Bower, 808 F.Supp.2d 348 (D. Mass. 2011) (declining to find implied consent where fugitive defendant did not participate in the litigation and had demonstrated no intent to consent to the disclosure of information).

c. But see Thayer v. Chiczewski, 2009 U.S. Dist. LEXIS

84176, 2009 WL 2957317 (N.D. Ill. Sep. 11, 2009) (a subscriber-plaintiff’s consent to the disclosure of one responsive email also gave implied consent to divulge the rest of the emails where the plaintiff did not specifically object to divulging the remaining emails).

3. Sixth Circuit requires “affirmative” consent or some other affirmative

action demonstrating consent from one of the four defined individuals listed in 18 U.S.C. §2703(b)(3).

a. Lucas v. Jolin, 2016 U.S. Dist. LEXIS 64098, 2016 WL

2853576 (S.D. Ohio May 16, 2016) the court quashed a third party subpoena to Google with respect to contents of email communications exchanged by the defendants because neither defendant had consented.

b. Baker v. Royce, 2015 U.S. Dist. LEXIS 192077, 2015 WL

13584586 (E.D. Mich. Jun. 26, 2015), the plaintiff served a subpoena to Verizon seeking all documents regarding the defendant, including subscriber information, call details, bills, receipts and text message records. Id. at *2. The court held that disclosure by Verizon could violate the Stored Communications Act, as none of the exceptions applied and the defendant had not given consent for the contents to be produced. Id. at *9.

c. Sys. Prods. & Solutions v. Scramlin, 2014 U.S. Dist. LEXIS

109389, 2014 WL 3894385 (E.D. Mich. Aug. 8, 2014), the court quashed the plaintiff’s subpoena to AT&T and Comcast requesting the content of the defendant’s emails as the defendant had not consented to its production.

d. Elcometer, Inc. v. TQC-USA, Inc., 2013 U.S. Dist. LEXIS

135437, 2013 WL 5346382 (E.D. Mich. Sep. 23, 2013), the court declined to enforce a civil subpoena to a non-party internet service provider as consent from the appropriate parties had not been given, and no other exception applied.

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F. Alternative Options

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008):

1. Parties can “get around” the Stored Communications Act through Rule 34 request for production.

a. Background.

i. City of Detroit entered into a contract for text

messaging services with non-party service provider SkyTel, Inc., which provided text messaging devices and corresponding services to various City officials and employees, including some of the defendants.

ii. The plaintiff issued two broad subpoenas to SkyTel,

seeking the disclosure of (1) all text messages sent or received by 34 named individuals, including the individual defendants, during a number of time periods spanning over five years, and (2) all text messages sent or received by any City official or employee during a four-hour time period in the early morning hours of April 30, 2003, the date that Plaintiff’s mother was killed.

iii. The defendants moved to preclude discovery of the

electronic communications, arguing that the Stored Communications Act prevents the plaintiff from obtaining in civil discovery any text messages that remain in SkyTel’s possession as a result of its role as the City’s service provider.

Plaintiff files its preliminary injunction against Defendant, seeking to enjoin Defendants from using its trademark on any websites. After difficulty serving Defendant, the court allows Plaintiff to serve Defendant via email and orders Defendant to file a response to Plaintiff’s motion for preliminary injunction. Defendant fails to respond and does not attend the hearing on the motion. However, Plaintiff does receive confirmation of Defendant’s receipt of the emailed motion, as Defendant sends an email mocking Plaintiff’s efforts to pursue him in the suit. Plaintiff serves a third-party subpoena on an internet service provider, seeking non-privileged emails associated with the trademark during the time period relevant to the case. The internet service provider objects to the subpoena under the Stored Communications Act. Plaintiff moves to compel the service provider to produce the communications. How should the court rule?

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iv. SkyTel also moved to quash the plaintiff’s subpoenas or, alternatively, for an order that would protect the company against liability under the Stored Communications Act for its production of text messages.

b. Holding.

i. The defendants’ and SkyTel’s motions were granted

in part and denied in part. The court ordered the plaintiff to re-formulate his third-party subpoena to a Rule 34 request for production.

ii. The court rejected the defendants’ sweeping

argument that the Stored Communications Act prevents all production of electronic communications in civil litigation.

The court found that relevant communications were discoverable under FRCP 26(b)(1), and that the plaintiff was entitled to obtain copies of those communications.

iii. The court skirted the direct issue of discoverability of

civil subpoenas under the Stored Communications Act, stating that “[i]n analyzing this contention, the Court initially proceeds under the premise that the plaintiff has sought the production of SkyTel text messages under a Rule 34 document request directed at the Defendant City, rather than a third-party subpoena directed at SkyTel.” Id. at 358.

In such a scenario, the relevant communications would be discoverable.

iv. “Under [Federal Rule of Civil Procedure] 34(a), a

party may request the production of documents and various other categories of items that are ‘in the responding party’s possession, custody, or control.’ The items that may be sought under the Rule include ‘electronically stored information,’ Fed. R. Civ. P. 34(a)(1), which plainly encompasses both electronic communications and archived copies of such communications that are preserved in electronic form, see Fed. R. Civ. P. 34, Advisory Committee Note to 2006 Amendments.” Id. at 352 (citing Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 & nn. 36-38 (S.D.N.Y. 2003)).

v. The court declined to analyze whether the Stored

Communications Act actually prevents the plaintiff

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from obtaining text messages, but did state that SkyTel’s compliance with the subpoena would violate the Stored Communications Act.

vi. Ultimately, the court ordered the plaintiff to

reformulate his third-party subpoena as a Rule 34 request for production.

2. Flagg stands for the proposition that electronic communications

may better be obtained through requests for production, instead of a subpoena, in order to avoid issues with the Stored Communications Act.

3. Other courts have held or noted similar propositions.

a. See, e.g., In re Millennium Global Emerging Credit Master Fund Ltd., 471 B.R. 342 (Bankr. S.D.N.Y. 2012).

b. Mintz v. Mark Bartelstein & Associates, Inc., 885 F.Supp.2d

987 (C.D. Cal. 2012). c. Doe v. City of San Diego, 2013 WL 2338713 (S.D. Cal.

2013) d. Nucci v. Target Corp., 162 So.3d 146 (Fla 4th DCA 2015).

IV. COMPLIANCE WITH THE STORED COMMUNICATIONS ACT

A. Parties Seeking the Content of Electronic Communications

1. For non-content based subpoenas:

a. May still use third-party civil subpoenas for discovery of non-content information, without the consent of the originator, addressee, and/or intended recipient of the electronic communications.

b. The Stored Communications Act does not apply. c. Ensure that the content being requested is actually not

content as defined under the Act.

2. If seeking content-based information:

a. Consider alternative options.

b. Use Rule 34 requests for production directly against the other party, instead of the third-party provider.

c. A Rule 34 request will “force” the receiving party to consent

to the third-party provider in order to produce the

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documents. See Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008).

Advantages: avoids potentially protracted litigation with both the other party and the third party with respect to production of the contents of electronic communications.

B. Parties Responding to Motions to Quash or Objections to the Subpoena

When responding to motions to quash or objections to the subpoena, keep in mind whether the motion or objection is appropriate, as the Stored Communications Act only protects content. If not, there is a good argument in response that the Stored Communications Act is inapplicable.

C. An ECS or RSC Provider’s Response to a Subpoena

1. Third party providers receiving subpoenas to produce information

of a party to a lawsuit should make sure to follow the mandates of the Stored Communications Act, including:

a. If possible, identifying the originator, addressee, and/or

intended recipient of the electronic communications. b. If the originator, addressee, and/or intended recipient of the

electronic communication is the party serving the subpoena, only the communications that involve the party serving the subpoena should be produced.

Example: Plaintiff requests from T-Mobile the contents of text messages that were sent and received between Plaintiff and the Defendants during January 2017 through March 2017 be produced. Because Plaintiff is an originator (individual who drafted the text), addressee (individual who the Defendants texted), and intended recipient (Defendants meant to send the text to the Plaintiff), the contents may be produced without violating the Stored Communications Act.

c. If the originator, addressee, and/or intended recipient of the

electronic communication is not the party serving the subpoena, the provider should decline to produce the information until express consent is received by the originator, addressee, and/or intended recipient. This procedure should be followed whether or not the information being requested involves a party to the action.

Example: Plaintiff requests from T-Mobile the contents of text messages that were sent and received between Defendant and a party not named in the action. Defendant does not object to the subpoena, but otherwise shows no other signs that it consents to the production. The unnamed party is most likely unaware of the subpoena, and therefore,

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does not demonstrate any intent to consent to the production. Because Plaintiff is not an originator, addressee, or intended recipient of the text messages, the contents may not be produced. Moreover, as neither Defendant nor the unnamed party took any active steps to demonstrate consent to the production, T-Mobile should not produce the contents until Plaintiff receives express consent from either Defendant or the unnamed party.

2. There is no provision in the SCA requiring the ECS or RCS provider

to actively obtain consent in response to a civil subpoena. Furthermore, no district courts in the Sixth Circuit have ordered an ECS or RCS provider to actively seek consent from the necessary parties before production of the communications.

a. Therefore, while the provider may request that the serving

party show proof of lawful consent, the provider itself is not required to actively seek consent from the parties.

b. The provider can request an attestation or other document

showing consent from the originator, addressee, and/or intended recipient of the electronic communication.

c. The provider can file a motion to quash.

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