18 U.S.C. § 2703. Required disclosure of customer communications or records (Part VI)

By Kristopher A. Nelson in

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As in 18 U.S.C. § 2702, both electronic communication services and remote computing services are explicitly addressed in parts (a) and (b), respectively. Part (a) provides the greatest level of protection against governmental access, as it requires “a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.” 18 U.S.C. § 2703(a). However, the statute provides that access to contents of a communication stored at a provider for more than 180 days falls under the more lenient standards that apply equally to access to contents of communications housed at a remote computing service. Id.

Under part (b), data held at remote computing services—and, as noted, communications stored for more than 180 days with an electronic communication service—allow more lenient government access. With a full warrant, the government can access the contents of a communication without notifying the subscriber or customer. 18 U.S.C. § 2703(b)(1)(A). With prior notice, an administrative subpoena or a court order is sufficient (see 18 U.S.C. § 2703(d) for the requirements for the court order) for government access to the contents of the communications.

Freedman v. Am. Online, Inc., 303 F. Supp. 2d 121 (Conn. 2004), deals with violations of Section 2703 by a town police department, who used an invalid warrant to solicit subscriber information. The court stated that “in soliciting and obtaining . . . personal information about the Plaintiff from AOL” the government failed to comply with the ECPA’s requirements that it either (1) had a valid warrant or (2) gave the plaintiff prior notice and sought a subpoena or court order. In addition, the court found it “unlikely” that the government would prevail in its argument that 18 U.S.C. § 2703(c)(1)(B) “puts the obligation on the online service provider to withhold information from the government, and not vice versa.” In soliciting the information from AOL, “the government knew, or should have known, that by turning over the information without a warrant, AOL was breaking the law.”