Electronic Communication Services vs. Remote Computing Services (Part I)

Please note that this post is from 2007. Evaluate with care and in light of later events.

In Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 875 (9th Cir. 2002), the Ninth Circuit wrote, “The legislative history of the ECPA suggests that Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards.”

In general, the status of “electronic communication services”—such as providers of electronic mail where the data stays on the server for only a limited amount of time—is more defined that that of “remote computing services.” Although the advent of Google and other Web-based application providers has made remote computing services into key players today, they occupied a relatively minor role since the passage of ECPA. In addition, it appears that Congress did not envision customers leaving sensitive data in storage—either with electronic communication services or with remote computing services—for any length of time, and therefore did not think to extend much legal protection to such stored communications.

One key difference between “remote computing services” and “electronic communication services” is the difference in protection for data stored with the provider. Only data either temporarily passing through an electronic communication service or held as a backup by an electronic communication service can be in “electronic storage” according to 18 U.S.C. § 2510(17): “(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.” See also Quon v Arch Wireless Operating Co., 309 F. Supp. 2d 1204 (C.D. Cal. 2004). Other key differences emerge when looking at 18 U.S.C. §§ 2701, 2702, and 2703 (see next posts).