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Stored Communications Act

The Stored Communication Act (SCA), as modified by other laws, such as the Electronic Communication Privacy Act (ECPA), enacted a number of duties, obligation, and prohibitions on companies and individuals who are entrusted with digital data.

Some provisions limit when such providers can hand over the data to other private parties, even when the information is subpoenaed in a legal proceedings. Other sections have provisions allowing law enforcement to obtain digital communications through warrants, in certain circumstances. It is critical that all those that are holding the digital data of others understand the rights and duties at play under these statutes. Moreover, they should understand the constitutional issues that may affect—and overrule—the statutes’ provisions.

Whether the Department of Justice is investigating allegations of criminal wrongdoing or a private party is trying to prove its case in civil litigation, often there is an attempt to get electronic information from third-parties, such as relatives, employers, internet service providers, cloud computing companies and email hosting operations. When this happens, the ECPA and SCA affect what data may be recovered from third-parties. Some might want to resist a Stored Communication Act warrant or a subpoena for digital communications.

The reasons for resisting are numerous, and might include legal compliance, avoiding litigation exposure, preserving customer relationships, protecting intellectual property, and ethical purposes. Indeed, many third parties believe that they are duty bound to protect the privacy of their customers. Others might be focused on minimizing the cost associated with compliance.

When it comes to electronically stored information, the government is becoming increasingly aggressive in attempting to force tech companies to turn over users’ private information through forced decryption or other invasive methods. Sometimes they are using grand jury subpoenas, warrants under the Stored Communication Act, Pen Register and Trap and Trace Device (Pen/Trap) orders, and even orders under the All Writs Act, which was originally adopted in 1789.

Often, requests under these statutes raise important statutory and constitutional concerns, including privacy and free speech issues (among others). Indeed, the SCA has gag-order provisions that can be challenged on first-amendment grounds.

The lawyers at Harvey & Binnall are experienced in litigating and resisting orders and requests under these and other statutes. They understand that many people and companies that safeguard the private data of customers believe that they have an important duty to safeguard privacy and they are proud to fight against government overreach and intrusion. Many tech businesses believe that they have an obligation, at the very least, to inform their customers of such warrants, so that the customer can choose take appropriate legal action to protect their privacy rights. Consequently, the businesses might want to challenge the constitutional of a SCA non-disclosure/gag order.

Third parties who receive Stored Communication Act warrants or subpoenas for digitally held communications should contact us promptly to learn of their legal responsibilities and their duties and rights. We are proud to represent third-parties when they receive warrants and subpoenas in cases nationwide. Depending on the specific situation, we can advise clients of their rights and obligations, limit the scope of the production, seek to shift the costs of production to the party seeking the information and even take court action to avoid a production entirely.