Accounting for Stored Communications

Federal law provides that, in some circumstances, the government may compel social media companies to produce social media evidence without a warrant. The Stored Communications Act (“SCA”) governs the ability of governmental entities to compel service providers, such as Twitter and Facebook, to produce content (e.g., posts and Tweets) and non-content customer records (e.g., name and address) in certain circumstances.

The SCA, which was passed in 1986, has not been amended to reflect society’s heavy use of new technologies and electronic services, such as social media, which have evolved since the SCA’s original enactment. As a result, courts have been left to determine how and whether the SCA applies to the varying features of different social media services, applying precedent from older technologies such as text messaging pager services and electronic bulletin boards.

The SCA provides that non-content records can be compelled via a subpoena or court order. Regarding compelled disclosure of the content of communications, the SCA provides different levels of statutory privacy protection depending on how long the content has been in electronic storage. The government may obtain content that has been in electronic storage for 180 days or less “only pursuant to a warrant.”

The government has three options for obtaining communications that have been in electronic storage with a service provider for more than 180 days:

1. Obtain a warrant;
2. Use an administrative subpoena; or
3. Obtain a court order under § 2703(d).
   

The constitutionality of the SCA has been called into question by at least one U.S. Circuit Court of Appeals. In United States v. Warshak, the Sixth Circuit held that “the government agents violated the Fourth Amendment when they obtained the contents of defendant’s emails” without a warrant, and added that “to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.”

The court reasoned that “over the last decade, email has become ‘so pervasive that some persons may consider it to be an essential means or necessary instrument for self-expression, even self-identification’” and that therefore “email requires strong protection under the Fourth Amendment.”

Noting that email was analogous to a phone call or letter and that the internet service provider was the intermediary that made email communication possible—the functional equivalent of a post office or telephone company—the court concluded that given “the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”

As social media becomes as pervasive and important to people like email, its treatment under the SCA will require similar clarification by courts.

Resources http://jolt.richmond.edu/index.php/social-media-evidence-in-government-investigations-and-criminal-proceedings-a-frontier-of-new-legal-issues/