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The Stored Communications Act (“SCA”) protects personal information stored by electronic communication service providers and remote computing service providers, e.g., internet service providers (“ISP”). The SCA prohibits electronic communication service providers and remote computing service providers from knowingly disclosing the contents of customers’ electronic communications or subscriber records. See 18 U.S.C.A. 2702(a).

While the SCA provides some exceptions, including one where governmental entities may, pursuant to an ongoing criminal investigation, require disclosure of the contents of customers’ electronic communications or subscriber information, see 18 U.S.C.A. 2703, it does not include an exception that allows disclosure of electronic communications in response to a civil discovery subpoena. This presents a problem for private litigants seeking information through the discovery process when the relevant information is stored only with the ISP such as Facebook or Twitter.

Ways around it:

If a party seeks information that falls under the statutory authority of the SCA, the party seeking admission must first ascertain who has control over the communication—whether it is a party to the proceeding or a third party—and then petition the court to compel disclosure or consent. Lindsay M. Gladysz, Status Update: When Social Media Enters the Courtroom, 7 I/S: J.L. & Pol’y for Info. Soc’y 691, 700-01 (2012). While the issue has not been decided definitively, several courts have quashed subpoenas to ISPs seeking the release of electronic communications. See, e.g., In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va. 2008).

This is not the case, however, when the subpoena is directed to the person who controls the information; under Federal Rule of Civil Procedure 34, when discovery is directed to a sender, recipient, addressee, or subscriber who exercises control over the communications, such communication is subject to discovery. Fed. R. Civ. P. 34(a)(1). Further, in Flagg v. City of Detroit, the court not only held that a court has the ability to order a person to produce documents, but that it can order that person to give consent so someone else can disclose documents and communications on their behalf. Flagg v. City of Detroit, 252 F.R.D. 346, 363 (E.D. Mich. 2008). Additionally, courts may seek disclosure of information from whoever controls the communication, even if that person is not a party in the proceeding. Thomas v. Deloitte Consulting LP, No. 3-02-cv-0343-M, 2004 WL 1372954, at *4 (N.D. Tex. June 14, 2004).

In Flagg v. City of Detroit, 252 F.R.D. 346, 366 (E.D. Mich. 2008), the plaintiff subpoenaed nonparty service provider SkyTel for text messages sent by the defendants. Both SkyTel and the defendants filed motions to quash the subpoena, citing the SCA. The court first noted that “§ 2702 lacks any language that explicitly authorizes a service provider to divulge the contents of a communication pursuant to a subpoena or court order.” Id. at 350. Therefore, for SkyTel to disclose the text messages to the plaintiff, the court said that the defendants must first consent, because § 2702(b)(3) permits disclosure “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.”

Because the court was uncertain that it had the authority to compel the defendants to consent to disclosure by Skytel, it instead ordered the plaintiff to “reformulate his third-party subpoena as a Rule 34 request for production directed at the Defendant.” At that point, the defendant would be required to request from SkyTel any relevant text messages that the defendant itself did not have physical possession of and to produce them to the plaintiff. Jeffrey Paul DeSousa, Self-Storage Units and Cloud Computing: Conceptual and Practical Problems with the Stored Communications Act and Its Bar on Isp Disclosures to Private Litigants, 102 Geo. L.J. 247, 265 (2013).

While this is a temporary workaround, it is an unnecessary extra step, further slowing down the everlasting discovery process. The SCA should be amended to include an exception for private civil litigation so that the extra step of court-ordered consent is no longer required.

Kevin Aleman