Stored Emails and Cell Phone Records: Are They Private?

Two cases concerning the scope of the Stored Communications Act, 18 U.S.C. §§ 2701 et. seq., (the “SCA”) under the Fourth Amendment are currently before the Supreme Court. The SCA, which was enacted more than 30 years ago, sets forth requirements for voluntary and compelled disclosure of electronic communications and records stored by third-party internet service providers. The purpose of the SCA is to protect privacy.

Under the SCA, internet service providers cannot “knowingly divulge” stored communications. 18 U.S.C. § 2702(a). If the government seeks access to the contents of communications or subscriber information from third-party internet service providers, the government must obtain judicial approval. To compel disclosure, the government must show through “specific and articulable facts” that there are “reasonable grounds” to believe that the information sought is “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703.

The scope of the SCA has been heavily contested in the courts. Two such cases are now before the Supreme Court; one is under review while a petition for certiorari is pending for the other.

The first case, Carpenter v. United States, revolves around obtaining cell tower location records under the SCA. Last year, the U.S. Court of Appeals for the Sixth Circuit held that collecting business records containing cell-site data using a SCA order was not a “search” under the Fourth Amendment and did not require a probable cause warrant. United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016). Carpenter petitioned for certiorari, arguing that the Sixth Circuit ruling should be overturned because the government violated his Fourth Amendment rights by collecting these records without a warrant issued upon a finding of probable cause. Carpenter v. United States, No. 16-402 (Sept. 26, 2016). The Supreme Court granted certiorari to decide whether law enforcement authorities can collect historical cell tower location data without a warrant by using the SCA. Carpenter v. United States, No. 16-402 (June 5, 2017).

Following the Supreme Court announcing it would hear arguments, a federal judge in the U.S. District Court for the Southern District of New York aligned itself with the Sixth Circuit, holding that the government did not require a probable cause warrant to track cellphone location data. United States v. Serrano, No. 16cr169 (WHP), 2017 U.S. Dist. LEXIS 112399 (S.D.N.Y. July 18, 2017). The court emphasized that “Fourth Amendment jurisprudence affords no privacy interest in records created by a third party based on information voluntarily provided.” Id. at *9.

The second case, United States v. Microsoft Corp., centers around communications stored abroad. The Second Circuit ruled that the SCA did not extend to electronic communications stored in extraterritorial jurisdictions outside of the United States and, therefore, the government could not retrieve emails stored abroad. Microsoft Corp v. United States, 829 F.3d 197 (2d Cir. 2016). Following the U.S. Court of Appeals for the Second Circuit’s denial to rehear the case en banc on January 24, 2017, Microsoft Corp. v. United States, 855 F.3d 53 (2d Cir. 2017), the federal government filed a petition for a writ of certiorari with the Supreme Court of the United States on June 23, 2017, United States v. Microsoft Corp., No. 17-2 (June 23, 2017). A response is due from Microsoft by August 28, 2017.

Conflicting decisions about the scope of the application of the SCA has caused uncertainty regarding companies’ duty to provide data stored internationally. (To learn more about these conflicting decisions, please see our alert from February 23, 2017.) This conflict may put pressure on the Supreme Court to resolve the uncertainty surrounding the reach of the SCA through both Carpenter and Microsoft. Undoubtedly, the Supreme Court’s rulings in both of these cases could have a major impact in how the government conducts investigations as well as individuals’ and companies’ privacy expectations.

For more information about these cases or for other questions, contact the authors of this alert, Jonathan Feld at jfeld@dykema.com, Jason Ross at jross@dykema.com, Ed Tomko at etomko@dykema.com, Christina Brunty at cbrunty@dykema.com, or your Dykema relationship attorney.