Your client sued a competitor who is also the new employer of your client’s former employee. He suspects that before the employee left, he sent his client’s proprietary information to his personal Gmail account. discovering it, he requests the gmail messages, but none are produced. undeterred and, observing his ethical duty of zealous representation, cites google for copies of the messages.
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bad news. Google won’t give them to you either. The Stored Communications Act (SCA) prevents Google and other email service providers from providing the content of email messages.
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the sca, enacted in 1986 and found at 18 u.s.c. 2701, et seq., protects against possible violations of privacy that are not contemplated in the fourth amendment. specifically, it prohibits “electronic communications service providers” and “remote computing service providers” from disclosing the content of electronic communications in response to civil subpoenas (and otherwise).
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As defined by the sca, the “content” of wire, oral, and electronic communications is “any information relating to the substance, purpose, or meaning of that communication.” 18 usc 2711(1) & 18 usc 2510(8).
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the account user has the ability to contest the citation
“Okay, okay,” you think to yourself. under the sca, google is not supposed to produce email content, but the employee moved to void the subpoena, not google. he will simply argue that because he served the citation on google and not the employee, he has no right to contest a citation on google.
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don’t bother. that’s impossible.
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as explained in leonardo world corp. v. Pegasus Solutions, Inc., 5:15-mc-80165 (n.d. cal. Sept. 24, 2015), the employee “has the ability to override [because] any individual with personal rights and privileges with respect to email has the right to request an order to vacate a subpoena of a third party.” see also allstate insurance co. v. lighthouse law p.s., case no. c15-1976rsl (w.d. wash. Feb. 7, 2017) (holding that a party has the right to void a subpoena issued to a third party where the party contesting the subpoena asserts a legitimate privacy interest in the material sought).
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see also: gmail attachment size limit: how to send larger files (2022)
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message identification based on search terms reveals “content” under sca
always resolved, after your first subpoena is voided, you deliver to another by searching only the dates, recipients, and subject lines of messages that contain certain keywords. he thinks the court will surely agree that he is not looking for the content of the messages.
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wrong again.
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The courts are one step ahead of you.
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The court rejected a similar application in optiver australia pty., ltd. v. tibra trading pty, ltd., case no. 12-80242 (n.d. cal. Jan. 23, 2013), a case involving a subpoena to google seeking “documents sufficient to identify” recipients and dates of sending, reading, and deleting messages containing search terms specific. said ruling stated that “[t]he sca prohibits any knowing disclosure. . . of the content of electronic communications, however insignificant” and refused to enforce the subpoena because the information requested would necessarily reveal that the content of the emails contained the search terms.
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Similarly, the optiver decision also denied a request for message subject lines: “it is clear from the purpose and nature of the subject line that it is sca-protected ‘content’ . . . in fact, The subject line of a message is nothing less than a concise summary of the content of the message.”
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using saved login information to access an employee’s personal email account may violate sca
After a forensic examination of your former employee’s company-provided computer, you notice that not only did you access your personal email account on your work computer, but you also saved your username and password from personal email on the device. his company’s employee handbook clearly states that work done on company devices can be monitored, so he thinks he can use his login information and check email on the company’s personal account . him.
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be careful. the courts don’t like that either.
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at finally sportswear, inc. v. fishman, 2016 ny slip op 31239 (n.y. sup. ct. 2016), the court rejected that idea. Following a similar case, the court noted that if a company’s computer policy makes it clear that the company can control an employee’s computer, the employee has no expectation of privacy with respect to the workplace computer. however, the court concluded that such language would also not allow the company to access the employee’s personal email account because the personal emails are likely not stored on the company’s equipment and the company does not have a business relationship with the employee. the employee. those accounts the court also rejected the argument that saving a username and password on a work computer constituted authorization.
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private messages on social networks also protected
Resigning yourself to the fact that web-based email service providers will not deliver the content of email messages, you will turn your attention to private messages sent via social media.
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another dead end.
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Private messages on social media are also protected from disclosure in response to a civil citation. for example, in crispin v. christian auditer, inc., 717 f. support 2d 965 (c.d. cal. 2010), the court refused to order the production of private messages sent through facebook or myspace and stated that “there is no basis to distinguish between [social networks] private messages. . . and traditional web-based email. . . .”
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some metadata is not “content” under sca and can be produced
all is not lost. Under the SCA, some metadata associated with electronic communications is not considered “content.” systems products & solutions vs scam, case no. 13-cv-14947 (ed. mich. August 8, 2014). For example, an SCA subpoena may be allowed if you only seek user information for specific accounts or emails. obodai v. in fact, inc., case no. 13-80027-misc (nd cal. Mar. 21, 2003). Similarly, email service providers can identify IP addresses from which email accounts have been accessed. sams v. yahoo!, inc., cv-10-5897 (nd cal. May 16, 2011).
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consent to subpoena may not be enough
What happens if the employee consents to the subpoena being delivered to their private email service provider? maybe nothing.
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at ppg industries, inc. v. Jiangsue Tie Mao Glass, Co. ltd., case no. 2:14-cv-965 (w.d. pa. Jul 21, 2017) ppg sued a former employee for theft of trade secrets. The employee is deceased and the employer obtained the consent of the employee’s executor to subpoena email from personal email accounts with Google, Microsoft, and Yahoo. Despite the consent of the executor, the email service providers refused to provide the requested email.
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ppg took up the issue in court, arguing that the sca allows email service providers to disclose the content of emails when they have “the legal consent of the author [of the electronic communication] or the addressee or recipient of said communication. 18 usc second. 2702(b)(3).
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The court rejected ppg’s argument, noting that there is no exception in the sca for civil subpoenas and, even if there were, the statute only says that service providers “may” provide requested communications if consent is given legal. The court also noted that, independently, Yahoo was not required to release the employee’s personal email because Yahoo’s terms of service contained a “no rights of survival and non-transferability” clause.
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if the account user is a party, it must produce emails per rule 34.
but remember, if you also sued the employee, he is required to submit relevant emails in his possession, custody and control. see, for example, luke v. jolin, case no. 1:15-cv-108 (s.d. ohio May 16, 2016), flagg v. city of detroit, 252 f.r.d. 346 (ed. mich. 2008) (noting that while the sca may prohibit the production of email content through a third party subpoena, the parties are obligated to submit such information in their possession and under their custody and control if requested through a proper court order). application for documents filed pursuant to fed.r.civ.pg 34).
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