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Permissible Disclosures Under the Stored Communications Act

By John DiGiacomo

The Stored Communications Act, which is codified at 18 USC 121, sections 2701-2712, is federal law that governs the conduct of electronic communication service providers and the voluntary and compelled disclosure of the contents of private electronic communications.

The purpose of the Stored Communications Act is to protect privacy of electronic communications that are not made to the public at large. Electronic communication service providers that service the public are prohibited from revealing the content of electronic communications that the store, with limited exceptions for permissible disclosure.

Are There Exceptions to When Disclosure is Permissible?

When a sender transmits an email, he or she is sending an electronic communication to an intended recipient through the services and infrastructure provided by an internet service provider. There are certain circumstances in which internet service providers and remote computing services providers are permitted to disclose the contents of electronic communications that they are storing on their servers. These exceptions to the Stored Communications Act include:

  • Disclosure to the intended recipient or an agent of the intended recipient. For instance, it is permissible for an internet service provider to disclose the contents of the electronic communication (e.g., an email) to the addressed intended recipient of the electronic communication.
  • With the lawful consent of the communications originator, addressee or intended recipient. If the author of the electronic communication, or the recipient or intended recipient consents to the disclosure of the contents of the electronic communication, then an internet service provider is permitted to disclose.
  • Third parties employer or authorized to forward the communication to its destination. An electronic communication might have to pass through individuals in order to get to its intended recipient and these individuals are generally implicitly authorized to access the content of electronic communications.
  • Disclosure is incident to providing service. It may be necessary for an employee of a internet service provider to access an electronic communication in order to forward the communication on as appropriate, i.e., the employee must know where the communication must be sent in order to get the communication to the intended recipient.
  • Disclosure is necessary in order to protect the rights or property of the service provider.  When the service provider’s property is placed into jeopardy, it may be permissible to disclose the contents of private electronic communications.
  • Disclosure to law enforcement. Disclosure may be permissible to law enforcement, for instance, as part of an ongoing criminal investigation.
  • Disclosure to a government entity in limited circumstances. There could be situations in which an ISP may disclose the contents of an electronic communication to a governmental entity. That may include the police, if it is believed that there is an emergency concerning danger of death or serious physical injury of someone.

Privacy in the Digital Age

The Stored Communications Act was meant to address aspects of privacy in the digital age that the Fourth Amendment of the Constitution does not address. The law applies to electronic communications handled and stored by internet service providers and remote computing service providers and prevents the knowing and voluntary disclosure of the contents of user’s electronic communications.

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