What Does the Law Say About the Warrant Issued to Microsoft?

III. Statutory Background

The Warrant was issued under the provisions of the Stored Communications Act, legislation enacted as Title II of the Electronic Communications Privacy Act of 1986.   Before we begin our analysis, some background will be useful.

A. The Electronic Communications Privacy Act of 1986

The Electronic Communications Privacy Act (“ECPA”) became law in 1986.[10]  As it is summarized by the Department of Justice, ECPA “updated the Federal Wiretap Act of 1968, which addressed interception of conversations using ‘hard’ telephone lines, but did not apply to interception of computer and other digital and electronic communications.”[11] ECPA’s Title II is also called the Stored Communications Act (“SCA”).  The Act “protects the privacy of the contents of files stored by service providers and of records held about the subscriber by service providers,” according to the Justice Department.[12] We discuss its provisions further below.

[10] Electronic Communications Privacy Act, Pub. L. 99‐508, 100 Stat. 1848, 1848–73 (1986) (codified as amended at 18 U.S.C. §§ 2510 et seq., 18 U.S.C. §§ 2701 et seq., and 18 U.S.C. §§ 3121 et seq.).

11 U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Assistance, Electronic Communications Privacy Act of 1986, Justice Information Sharing, https://it.ojp.gov/privacyliberty/authorities/statutes/1285 (last visited May 12, 2016).  The Department advises that the acronym “ECPA” is commonly used to refer to the three titles of ECPA as a group (Titles I, II, and III of Pub. L. 99‐508).  Id.  Title I “prohibits the intentional actual or attempted interception, use, disclosure, or procurement of any other person” to intercept wire, oral, or electronic transmissions; Title II is the Stored Communications Act, discussed in the text; Title III “addresses pen register and trap and trace devices,” requiring government entities to obtain a court order authorizing their installation.  Id.  Title I and III are codified at 18 U.S.C. §§ 2510‐22; Title II is codified at 18 U.S.C. §§ 2701‐12, and constitutes chapter 121 of Title 18.

[12] See supra note 11.