Compelling disclosure of Facebook content under the Stored Communications Act.

• Author: Hankins, Allen D.

1. INTRODUCTION

   Since 2004, Facebook and other social network sites have dramatically changed the way people stay in touch with friends, family, and other acquaintances. (1) The explosive growth of these sites has resulted in users creating an immense amount of online communications between one another on an ongoing basis. (2) Users often seek some kind of social fulfillment in engaging in those communications, and as a result, they often tend to be more intimate than other types of communications. (3) This very personal and revealing nature increasingly makes them central to the resolution of both civil and criminal actions. (4)

   In cases where these communications are integral to the outcome of the case, a party has a profound interest in obtaining them from an opposing party. (5) Although a party may seek a discovery order compelling an opposing party to grant access to his or her Facebook page, this sometimes is not sufficient. (6) Parties may "clean up" their Facebook pages before or during litigation to remove any potentially implicating content. (7) A better alternative is to seek the information directly from the social network provider. (8) However, the quasi-private nature of that content may bring it within the protection of the Stored Communications Act ("SCA"). (9) The SCA prohibits certain electronic service providers from disclosing users' communications. (10) It affords some level of privacy protections for electronic communications akin to Fourth Amendment protections for physical spaces. (11) Courts have reached different conclusions in applying the SCA to ever-evolving social network websites, but some identifiable trends are emerging. (12)

   This Note provides members of the legal profession insight into the types of challenges the SCA may present in attempting to compel disclosure of a party's Facebook account contents, as well as arguments that practitioners can make both for and against such disclosure. Part II examines the text of the SCA and the policy justifications for enacting the statute. (13) Part III discusses the application of the SCA to communication services analogous to the services provided by Facebook, including electronic bulletin board systems, text messages, and e-mail. (14) Part III also details courts' analyses in the few cases that have applied the SCA to communications residing on Facebook users' accounts. (15) The content of those accounts is playing an increasingly important role in litigation and settlement negotiations as more and more people become members of social network websites. (16) Therefore, Part IV sets forth issues practitioners are likely to encounter in seeking to obtain or prevent disclosure of Facebook account holders' information in both civil and criminal matters. (17)

2. THE STORED COMMUNICATIONS ACT

   Congress wished to extend Fourth Amendment protections to new forms of communications when it passed the SCA in 1986. (18) The Fourth Amendment prohibits searches where individuals have an actual, subjective expectation of privacy that is objectively reasonable. (19) For instance, individuals' physical homes receive strong protections from unreasonable searches due to their inherently private nature. (20) However, applying Fourth Amendment jurisprudence to intangible communications, such as internet communications, proved difficult for courts prior to enactment of the SCA. (21) Furthermore, even if the Fourth Amendment were to protect internet communications, government agents would be able to issue grand jury subpoenas to compel the disclosure of information without probable cause, despite a Fourth Amendment reasonable expectation of privacy. (22) Additionally, the Fourth Amendment places no restrictions on searches or seizures of internet users' communications by internet service providers ("ISPs") because most ISPs are private companies, to which the Fourth Amendment is inapplicable. (23) The SCA overcomes these Fourth Amendment privacy concerns by affording ISP customers statutory privacy rights. (24) The SCA limits the government's ability to compel providers to disclose information in their possession about their subscribers. (25) It also limits the ability of ISPs to voluntarily disclose information about their customers and subscribers to the government. (26)

   The level of protection afforded to a communication depends upon whether the SCA classifies the provider of the communication as an electronic communication service ("ECS") or remote computing service ("RCS") in relation to the communication at issue. (27) The SCA defines ECS providers as those that provide "service[s] which provide[] to users thereof the ability to send or receive ... electronic communications." (28) RCS providers are those that provide the public "computer storage or processing services by means of an electronic communications system." (29) The distinction between ECS and RCS providers arose in part due to businesses outsourcing their data processing and data storage needs. (30) A single provider may be a provider of ECS in some instances and a provider of RCS in other instances. (31) A provider may also provide both ECS and RCS with respect to the same communication. (32) For example, when a person sends an e-mail, that e-mail awaits the recipient's retrieval, and the e-mail provider acts as a provider of ECS. (33) If the recipient retrieves the e-mail and chooses to keep the e-mail on the provider's server, the provider may act thereafter as a provider of RCS. (34)

   The SCA first prohibits ECS and RCS providers from revealing contents of electronic communications that they store or maintain. (35) It next describes the instances in which providers may voluntarily disclose electronic communications. (36) Under the SCA, ECS providers may voluntarily disclose electronic communications in eight situations. (37) Four situations--set forth in exceptions (1), (2), (4), and (5)--are a part of providing the communication service, including to the addressee of the communication, as well as to employees of the service provider. (38) Exceptions (3), (6), (7), and (8) set forth other specific instances in which providers may disclose communications. (39) More specifically, the third exception allows disclosure if the sender or intended recipient consents to disclosure; the sixth allows disclosure in certain instances of child abuse; and the eighth allows disclosure to a governmental entity if the provider believes an emergency involving death or serious bodily injury requires disclosure. (40) Finally, the seventh exception allows disclosure to a law enforcement agency if a provider inadvertently obtains a communication that appears relevant to the commission of a crime. (41) Similarly, RCS providers may voluntarily disclose electronic communications in the same eight situations, as well as when the subscriber consents to the disclosure. (42)

   The SCA next sets forth the methods in which the government may compel a provider to disclose communications. (43) To compel disclosure of ECS communications, the contents at issue must be held "in electronic storage in an electronic communications system." (44) The SCA 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." (45) If the ECS provider has held the communication for 180 days or less, the government must obtain a search warrant. (46) To compel an ECS provider who has held a communication for more than 180 days, the government may obtain a warrant, use an administrative or trial subpoena with prior notice to the subscriber, or obtain a court order with prior notice to the subscriber. (47) The procedure for compelling an RCS provider to disclose communications is identical to the procedure for compelling ECS providers who have held a communication for more than 180 days, i.e., the government may obtain a warrant, obtain an administrative or trial subpoena with prior notice to the subscriber, or obtain a court order with prior notice to the subscriber. (48) Thus, the heightened compelled disclosure requirements are only applicable to ECS providers who have held a communication for 180 days or less. (49)

   The SCA contains no exception--for either ECS or RCS providers--for disclosure of communications pursuant to civil discovery subpoenas. (50) Compelling disclosure using a "trial subpoena" does not encompass a discovery subpoena duces tecum. (51) Trial subpoenas--subpoenas "for attendance at a ... trial"--must issue from the court where the trial is to be held. (52) Discovery subpoenas--subpoenas "for production or inspection" of documents or electronically stored information--must issue from the court where the production or inspection is to be made. (53) Congress could have included discovery subpoenas as a method for compelling disclosure if it had intended that result. (54)

   Major technology companies and privacy groups have pressured legislators to reform the SCA to address some of these confusing issues pertaining to disclosure. (55) The difficulty in applying the SCA to modern technology is also well documented in academia. (56) There have been several amendments to the SCA in the past, but none has updated the Act to better apply to modern communications. (57) As of the publishing of this Note, there is no proposed legislation amending the SCA to address the SCA's applicability to social media. (58)

3. APPLICATION OF THE SCA

   1. The SCA Applied to Similar Technologies

      Although the SCA did not contemplate how communications such as social network sites might be handled, the Senate Report provides some insight as to how the SCA would be applied to electronic bulletin boards. (59) Electronic bulletin boards, a predecessor to social media, resemble traditional cork-and-pin bulletin...