Stored Communications Act, codified at 18 U.S.C. §§ 2701–2712

The Stored Communications Act authorizes the government to require providers of electronic communications services to disclose both the substantive contents of stored communications as well as the metadata records associated with those communications (e.g., email dates, times, and header information, including “to” and “from” addresses).

The Stored Communications Act does not always require a warrant based on probable cause.  Under Section 2703(a) of the Act, if a communication has been in storage for 180 days or less, the government must get a warrant in order to obtain the communications.  Under Section 2703(b), if a communication has been in storage for more than 180 days, the government may obtain communications using an administrative subpoena or a court order based on “specific and articulable facts” showing that the communications are relevant to a criminal investigation if the government provides notice to the subscriber.  Alternatively, it always remains the case that the government may obtain communications without providing notice if it obtains a traditional search warrant based on probable cause.[1]

Proposed legislation would require law enforcement to obtain a search warrant when it seeks the contents of communications, regardless of how long the communications have been in storage.[2]  In addition, one federal appellate court has held that a warrant is required for the government to acquire communications content under the SCA,[3] and it is the policy of some internet companies to disclose communications content only pursuant to a search warrant.[4]  One federal appellate court has also held that the SCA does not apply extraterritorially, which means that the government cannot get a warrant to seize email content stored exclusively on a foreign server.[5]

Under 18 U.S.C. § 2703(d), the government may obtain non-content subscriber records without notice using an administrative subpoena or a court order based on “specific and articulable facts” showing that the records are relevant to a criminal investigation.[6]  A circuit split exists regarding the constitutionality of this provision as applied to the government’s warrantless acquisition of historical cell site location information—information gleaned from cell towers that creates a record of an individual’s location over time­­—and one party is petitioning to have the Supreme Court address the issue.[7]

In 2010, the United States Attorney for the District of Columbia sought and obtained a search warrant under 18 U.S.C. § 2703(a) for the personal email account of James Rosen, a Fox News reporter, in connection with an investigation of unauthorized disclosure of classified information that Rosen had published in a 2009 article.  In that case, the government obtained a warrant for the disclosure of “any and all communications” between Rosen’s email address and three specified email addresses, in addition to “any and all communications” to or from Rosen’s email address on the two days following the publication of Rosen’s article.  In the probable cause affidavit in support of its warrant application, the government argued that Rosen had conspired with his source to violate the Espionage Act and that the search was therefore permissible under the “suspect exception” to the Privacy Protection Act.[8]  In addition, the Justice Department took the position that email search warrants obtained under the Stored Communications Act did not require notice to customers and subscribers whose accounts were searched.[9]  According to press accounts, Rosen did not learn of the search until nearly three years later.[10]

At the time of the Rosen search, the Attorney General’s policy on obtaining records of members of the news media did not specifically apply to search warrants, although news reports indicate that then-Attorney General Eric Holder nonetheless personally approved the warrant.[11]  Today, the Department of Justice media subpoena guidelines apply to search warrants as well as to court orders issued under Section 2703(a)–(d) of the Stored Communications Act, requiring the government to pursue notice and negotiation with a member of the news media and to meet substantive tests before seeking a journalist’s communications or records using these tools.  However, if a search warrant, subpoena, or court order is approved in a matter where the reporter is a subject or target, as opposed to a witness, the Department is not required to pursue notice and negotiation with the journalist.  To protect journalists from being targeted in investigations directed at their sources, however, the revised guidelines also indicate that a search warrant for a journalist’s records should not be approved if its “sole purpose” is in support of an investigation of a different person.[12]  This seemed to be the case in the Rosen matter, and Holder has stated that he regretted identifying Rosen as a “co-conspirator” in the probable case affidavit.[13]  Notwithstanding these protections, as indicated earlier, the guidelines explicitly state that they do not create any enforceable rights.[14]

Last year, Microsoft initiated a legal challenge to Section 2705 of the SCA, which permits the government to apply for a gag order when they are executing warrants pursuant to Section 2703.[15]  The Section 2705 gag order prevents companies like Microsoft from telling their customers that their records were searched.  Microsoft argued in federal district court in Seattle that these gag orders violated both the First and Fourth Amendments.  In February of this year, the judge in that case allowed the case denied the government’s motion to dismiss Microsoft’s First Amendment claims, but granted the motion as to the Fourth Amendment claims, concluding that Microsoft lacked standing to assert its customers’ Fourth Amendment rights.  The case is ongoing.



[1] See also Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, available at https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/0....

[3] Warshak, 631 F.3d at 288 (“[T]o the extent that the SCA purports to permit the government to obtain such emails [stored with a commercial ISP] warrantlessly, the SCA is unconstitutional.”).

[4] See, e.g., Legal Process – Google Transparency Report, available at https://www.google.com/transparencyreport/userdatarequests/legalprocess/#whats_the_difference; see also Written Testimony of Richard Saldago, Director, Law Enforcement and Information Security at Google, Inc., Senate Judiciary Subcommittee on Privacy, Technology and the Law, Hearing on “The Surveillance Transparency Act of 2013” (Nov. 13, 2013), available at http://www.judiciary.senate.gov/imo/media/doc/11-13-13SalgadoTestimony.pdf.

[6] The government may also obtain basic subscriber and session information using an administrative subpoena, trial subpoena, or grand jury subpoena.  See 18 U.S.C. § 2703(c)(2).

[7] See Graham v. United States, Petition for Writ of Certiorari to the United States Court of Appeal for the Fourth Circuit, Case No. 16-6308 (2016) (set for conference on May 11, 2017), available at https://static1.squarespace.com/static/53e92769e4b07d7503ae637a/t/57eebe2cb3db2bd7ce270926/1475264044963/2016-09-30+Graham+cert+petition+CORRECTED.pdfSee also Am. Civ. Lib. Union, Cell Phone Location Tracking Laws By State, available at https://www.aclu.org/map/cell-phone-location-tracking-laws-state.

[9] See Ryan Lizza, How Prosecutors Fought to Keep Rosen’s Warrant Secret, The New Yorker (May 24, 2013) available at http://www.newyorker.com/news/news-desk/how-prosecutors-fought-to-keep-r....

[10] Id.

[11] Id.

[13] See Holder says ‘subpoena’ to Fox News reporter is his one regret, Fox News (Oct. 30, 2014), available at http://www.foxnews.com/politics/2014/10/29/holder-says-subpoena-to-fox-news-reporter-is-his-one-regret.html; see also Charlie Savage, Holder Hints Reporters May Be Spared Jail in Leak, N.Y. Times (May 27, 2014) (Holder stating, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”), available at http://www.nytimes.com/2014/05/28/us/holder-hints-reporter-may-be-spared....

[14] Id. at (j).