The Provisions Protecting a User's Stored Communications

1. The SCA’s Warrant Provisions

The reader will recall the SCA’s provisions regarding the production of electronic communication content:  In sum, for priority stored communications, “a governmental entity may require the disclosure . . . of the contents of a wire or electronic communication . . . only pursuant to a warrant issued using the rules described in the Federal Rules of Criminal Procedure,” except (in certain cases) if notice is given to the user.  18 U.S.C. § 2703(a), (b).

In our view, the most natural reading of this language in the context of the Act suggests a legislative focus on the privacy of stored communications. Warrants under § 2703 must issue under the Federal Rules of Criminal Procedure, whose Rule 41 is undergirded by the Constitution’s protections of citizens’ privacy against unlawful searches and seizures. And more generally, § 2703’s warrant language appears in a statute entitled the Electronic Communications Privacy Act, suggesting privacy as a key concern.

The overall effect is the embodiment of an expectation of privacy in those communications, notwithstanding the role of service providers in their transmission and storage, and the imposition of procedural restrictions on the government’s (and other third party) access to priority stored communications. The circumstances in which the communications have been stored serve as a proxy for the intensity of the user’s privacy interests, dictating the stringency of the procedural protection they receive—in particular whether the Act’s warrant provisions, subpoena provisions, or its § 2703(d) court order provisions govern a disclosure desired by the government.   Accordingly, we think it fair to conclude based on the plain meaning of the text that the privacy of the stored communications is the “object[] of the statute’s solicitude,” and the focus of its provisions.  Morrison, 561 U.S. at 267.