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Data Disagreement: Are Your Communications Protected from the Court?

By John DiGiacomo

data disagreement In an age where 68% of Americans own smartphones, our data and communication sources are sometimes our most prized possessions. With the help of technology, individuals now conduct business and pass time all from hand-held devices with little thought about privacy. While most people assume their conversations via cellular phones are secure, is it possible the court could intervene and confiscate all information when it deems appropriate?

For most individuals who never see the inside of a courtroom, this question is irrelevant. However, on the off chance one does find him or herself inside the judicial system, it’s important to know what communications can and will be brought in as potential evidence. Since third party companies store most of our data, most user information is not locked away on a handheld device alone. The Stored Communications Act is a law that governs this type of material. Specifically, it covers stored wire and electronic communications and transactional records held by third parties.

Constitutional Protections

This potentially conflicts with the 4th Amendment, which states that people have the right “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The courts have addressed this matter. There is a distinction between an electronic communication system and a remote computing service. Electronic communication services are services like Internet Service Providers (ISP): Comcast, AT&T, or Charter. Remote computing services are companies like YouTube, Reddit, and other forum posting data holders.

This distinction is important because the court system has treated the categories differently. The court views electronic communication systems with higher regard and protection under the 4th Amendment, requiring search warrants and probable cause in order to obtain information for any case. In comparison, legally obtaining information from remote computer services only requires a subpoena or court order with prior notice.

Protection Against Information

Emails are the most controversial point of debate between the two categories of electronic communication systems and remote computing services. If an unopened email has been stored for 180 days or less, it’s considered an electronic communication system, so the government must obtain a search warrant to gain access to the information. Once an email has been opened or has been on a server for longer than 180 days, though, it falls under the remote storage service guidelines. This odd distinction instantly makes the email accessible via a subpoena or court order and no longer requires the scrutiny of probable cause that a search warrant demands.

If your service provider is given a warrant or subpoena, must the company actually comply? Most likely, they’ll have to. For criminal cases, all fifty states have adopted the Uniform Act, which compels witnesses, or holders of information, to submit to a subpoena. In civil cases in Federal Court, Rule 45 of the Federal Rules of Civil Procedure requires any potential witness to abide to the subpoena’s demands. In a state civil case, there is a better chance of avoiding a required subpoena.

Generally, most states do not require an out-of-state resident or company to adhere to normal subpoena rulings in state court: a Minnesota resident would not be required to submit to a subpoena issued from a Michigan state court, for example. However, when an Internet provider is being subpoenaed, it is harder to determine whether or not the company has business within the state that would make them susceptible to state laws. Even if the Internet provider is not directly based in a state and the company does not have data storage units within the state, under certain circumstances the company can still be subject to the state’s laws if it has done direct business within the state. The Due Process Clause of the Fifth and Fifteenth Amendments protect the long-arm approach by court systems from overreaching their boundaries and require that the court prove its jurisdiction over the subpoenaed company.

Voluntary Disclosure

Under certain circumstances, companies may want to volunteer information without requiring a search warrant or subpoena. These instances normally revolve around life-or-death situations. While the Stored Communications Act normally prohibits companies from disclosing personal information, in these situations that a company believes there to be an emergency, the bill warrants voluntary disclosure of communications or records to the government.

Companies like Apple. Inc. go to great lengths to keep their user’s information private, but do so with the understanding that in special circumstances allowed by the Electronic Communications Privacy Act, the company will voluntarily disclose. This voluntary disclosure is viewed from the perspective of good faith from the provider. While the wording seems to give the provider’s great discretion, history has shown us that providers are very reluctant to disclose their user’s information.

If you have any questions regarding your information and what is or is not obtainable by the courts, contact one of our Internet Attorneys or call 855-473-8747.


Image courtesy of Flickr user Esther Vargas.

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