Options for Promoting Privacy on the National Information Infrastructure. 2. Stored Communications


The law also protects voice mail and electronic mail (e-mail) in electronic storage.98 The statute defines electronic storage as "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication."99 To be in electronic storage within the meaning of the statute, an electronic communication must be in storage as a by-product, or incidental feature, of the transmission of the message.100 Storage for record keeping purposes is not covered.101

It is unlawful for anyone intentionally to access without authorization a facility through which an electronic communication service is provided, or intentionally to exceed authorization to access that facility, and thereby obtain, alter or prevent authorized access to a wire or electronic communication while it is in electronic storage.102 Anyone who provides an electronic communication service or remote computing services103 to the public is prohibited from voluntarily disclosing the contents of an electronic communication stored or maintained on the service.104

There are several important exceptions to these non-disclosure provisions: stored content may be disclosed with the lawful consent of the originator, an addressee, or the intended recipient of such communication;105 a service provider may disclose content incident to its rendition of service or to protect the rights of the provider;106 and disclosure to a law enforcement agency is permitted if the contents were inadvertently obtained and appear to pertain to the commission of a crime.107

Different rules govern access to a stored communication, depending upon how long the particular communication has been in electronic storage and who is seeking access. The government may access communications stored for one hundred and eighty days or less only pursuant to a warrant issued under the Federal Rules of Criminal Procedure or an equivalent state warrant.108 Prosecutors may use either a Rule 41 search warrant (without notice to the customer or subscriber) or an administrative subpoena, grand jury subpoena, trial subpoena, or a court order pursuant to 18 U.S.C. § 2703(d) (with notice to the customer or subscriber) to access information stored for more than one hundred eighty days.

98. See 18 U.S.C. § 2701 et seq. (1994).

99. 18 U.S.C. § 2510(17).

100. Id.

101. Such storage would be subsequent to the transmission and, accordingly, the definition of "electronic storage" is not satisfied. See United States Dep't of Justice, Federal Guidelines for Searching and Seizing Computers 86-87 (1994).

102. See 18 U.S.C. § 2701 (1994).

103. A "remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system. Id.

104. See 18 U.S.C. § 2702 (1994); 18 U.S.C. § 2711(2) (1994).

105. See 18 U.S.C. § 2702(b)(3).

106. See 18 U.S.C. § 2702(b)(5).

107. See 18 U.S.C. § 2702(b)(6).

108. 18 U.S.C. § 2703(a).