A distinctionless distinction: why the RCS/ECS distinction in the Stored Communications Act does not work.

Author:Hinz, Eric R.
Position:Remote computing service, electronic communication service


On April 30, 2003, Tamara Greene was shot dead by a .40 caliber pistol, the same caliber used by the Detroit police. (1) Mayor Kwame Kilpatrick, celebrating his election as the youngest mayor of Detroit, is alleged to have had a party half a year earlier at the mayoral Manoogian Mansion. The party was supposedly attended by strippers--including Tamara Greene. (2) According to a member of the mayor's protection unit, the mayor's wife arrived at the party and physically assaulted Ms. Greene. (3) Less than a year later, Tamara Greene was dead.

The murder occurred during an ongoing investigation into Kilpatrick, his security force, and the Manoogian party. This led to widespread speculation that the Detroit police had been involved in the killing. (4) Police officers involved in investigating the murder and the other incidents were either transferred or fired, including a deputy police chief. (5) Tamara Greene's family brought a suit against the City for obstructing the investigation. As part of the suit, they requested thousands of city text messages surrounding the dates of the incident. (6)

Later, during a whistleblower suit about the improprieties of the mayor, Kilpatrick and his then chief of staff, Christine Beatty, testified that the two of them had not had ah extramarital affair together. (7) The mayor lost the suit and planned on appealing until the case was suddenly settled for $8.4 million. It was later discovered that the reversal and settlement came after the mayor's counsel found out that the plaintiffs were seeking to introduce thousands of text messages between the mayor and his chief of staff detailing the affair--evidence that the mayor had perjured himself. (8) These text messages led to Kilpatrick's resignation as mayor and subsequent criminal charges. (9)

As the cases resulting from Mayor Kilpatrick's actions show, text messages have become increasingly important in both civil and criminal suits. The disclosure of stored electronic communication, such as text messages, is governed by the Stored Communications Act (SCA). (10) The case allowing Tamara Greene's family to discover city text messages, Flagg v. City of Detroit, (11) has become an increasingly cited case interpreting the SCA. The Act creates a distinction between providers of Electronic Communication Services and Remote Computing Services. (12) A court must determine which category a provider falls into, as both have different discovery standards. As Flagg shows, this analysis is not an easy one; the court went as far as admitting that part of its analysis could be "mistaken." (13) This Note argues that the categories created by the Stored Communications Act do not adequately differentiate between different services, frequently overlap, and are unable to convincingly categorize contemporary services.

Part I describes the background, scope, categories, and disclosure standards of the Stored Communications Act. Particularly, Part I.C delves into the different results that occur based on a court's categorization of a service. Part II discusses some important cases that seek to interpret and apply the Act, often with contradictory results. Part III discusses ways the Act could be applied to contemporary services. Specifically, it seeks to show how many common services could be considered either an electronic communication service or a remote computing service depending on the result desired by the court. Finally, Part IV analyzes recent amendments proposed to the SCA in light of much criticism and suggests an alternative path that Congress should take.


    The Stored Communications Act, (14) a part of the Electronic Communications Privacy Act (ECPA), (15) was passed in 1986 to fill a perceived need to protect the privacy of electronic communication. (16) Due to rapid technological advances in computing and communication, individuals and corporations had a plethora of new options to process and store data and communicate with others. (17) These advances pushed the scope of the Fourth Amendment as understood in existing case law and statutes in effect at the time. (18) This section explores the background and history surrounding the Act and provides an explanation of the relevant parts of the Act. (19)

    1. Background

      The SCA was passed in large part to cover areas of electronic information left open by the Fourth Amendment. (20) The Fourth Amendment protects one's "reasonable expectation of privacy." (21) This protects the inside of one's house, (22) the inside of one's car that is not in plain view, (23) the contents of a phone conversation, (24) etc. However, once a purportedly protected piece of communication has been placed in plain view (25) or released to a third party, (26) it no longer receives the same protection.

      This "third-party doctrine" made it especially difficult to apply the Fourth Amendment protections to the electronic communications covered in the SCA. With the growth of computing services and electronic mail, individuals and businesses had many more choices in determining their communication and computing needs. (27) While businesses may have utilized computers around the time the SCA was enacted, the amount of computing power needed to process large amounts of data was still very expensive. So, businesses often sent their data processing needs off to other businesses. The problem, though, was that as soon as they gave their data to a third party for processing, it was controlled by a third party and was no longer subject to Fourth Amendment protections. (28)

      The committee reports accompanying the proposed bill used the example of the choice faced by hospitals. (29) Hospitals have large amounts of records and data to process. While it would now be quite affordable to process this information in-house, at the time, the computing power needed would have been very expensive for a normal business. It often made financial sense for the hospitals to send the information out for processing elsewhere. In the course of processing the information, services often made copies to hold in storage in case a backup was needed. (30) However, by doing this, information that had been protected was released to third parries, effectively eliminating the protections.

      Similar issues arose with the increase of electronic communication. Congress recognized that there was a big gap between the protections provided for first class mail and those afforded to electronic communication. (31) There was a great deal of law protecting mail from being opened without authorization, but there was nothing comparable to protect messages sent by newer forms of technology. (32) Yet, businesses and individuals used electronic communication in virtually the same way as traditional first class mail. Congress was concerned that this gap could create uncertainty and "may unnecessarily discourage potential customers from using innovative communications systems ... [and] may discourage American businesses from developing new innovative forms of telecommunications and computer technology." (33)

      Electronic communication was included within the SCA because, unlike modern e-mail, storage of messages was an important part of transmission. (34) At the time the statute was written, e-mail was transmitted over telephone lines. A subscriber would type a message on a computer, connect to the telephone line, and then send it to the recipient electronic mail company.(35) The message would be stored until the intended recipient connected with the company and the message would be downloaded to the final computer. While the provider would store the message as part of the transmission, a final copy was actually downloaded to the recipient computer. (36) The same privacy issues that occurred with remote computer processing occurred with electronic mail because the provider, at least temporarily, had a copy of the message. (37)

    2. The Scope of the Stored Communications Act

      To fill in the potential gaps in privacy protection, Congress passed the Stored Communications Act. The SCA seeks to balance the privacy concerns of Internet subscribers, while also creating channels for the government to obtain information necessary for investigations.(38) The statute does this in two primary ways. (39) First, it prevents the voluntary disclosure of electronic communication to the public. (40) Second, the Act sets in place the procedural framework that the government must follow to compel disclosure. (41)

      The SCA makes a very important distinction based on the prevalent functions of network service providers at the time. This distinction is one of the central aspects of the Act and is the focus of this Note. In order to determine the level of applicable protections, a court must determine if the service provides an Electronic Communication Service (ECS) or if it provides a Remote Computing Service (RCS). (42) Services that provide for the sending and receiving of electronic communication such as e-mail and text messages are electronic communication services. (43) The Act regulates the information transmitted and stored by these services. Meanwhile, services that provide storage and processing are remote computing services. (44) The Act regulates the use of the information delivered to, and retained by, these services.

      The SCA defines an ECS as "any service which provides to users thereof the ability to send or receive wire or electronic communications." (45) Since it is the storage of the sent information that is at issue in the statute, the Act defines electronic storage as "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof," (46) and "such communication [as is stored] ... for purposes of backup protection of such communication." (47) On the other hand, an RCS is "the provision to the public of computer storage or processing services by means of an electronic...

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