Computer Crime and Intellectual Property Section (CCIPS) |
Computer Crime and Intellectual Property Section (CCIPS) |
A. INTRODUCTION
Electronic Bulletin Board Services (BBSs) are computers set up to serve in the electronic world as places where users can post and read messages--much like traditional bulletin boards. In addition, however, a BBS may also permit users to communicate via private electronic mail, to engage in "chat sessions" (real-time conversations where the "speakers" talk by using their keyboards instead of their voices), to upload and download files, and to share information on topics of common interest (e.g., a newsletter on stamp collecting). A sysop runs the bulletin board, and BBS users access it with their computers over regular telephone lines.
Some bulletin boards, known as "pirate bulletin boards," are maintained for illegal purposes such as distributing copyrighted software, credit card numbers, telephone access codes, and pornography. A BBS dedicated to phone fraud is also called a "phone phreaker board," and those which distribute child pornography and adult obscenity are called, not surprisingly, "porn boards." The illegal material on these boards is not protected by the First Amendment since such items are "fruits of crime" and "contraband" and do not convey any thought, opinion, or artistic expression. Nor can these operations claim some sort of "press protection" for publishing these items, since the Constitution does not shield the press against laws of general applicability. In short, the First Amendment is not a license to commit crimes. See Securities and Exchange Commission v. McGoff, 647 F.2d 185 (D.C. Cir.), cert. denied, 452 U.S. 963 (1981); Cf. Pell v. Procunier, 417 U.S. 817, 833-5 (1974)(the right to speak and publish does not carry an unrestrained right to gather information; a prison may restrict the press's access to its inmates in accord with the state's legitimate incarceration policy objectives).
It gets more complex, however, because many bulletin boards are not devoted solely to illegal activities, but are hybrid boards: they contain both illegal and legal material. To complicate matters further, the legitimate material on the board (or stored on the same computer which runs the board) may be statutorily protected. For example, some private electronic mail may be covered under 18 U.S.C. § 2701, et seq., Stored Wire and Electronic Communications. (For further discussion, see "STORED ELECTRONIC COMMUNICATIONS," infra p. 82). Even more difficult, some material may be specifically protected from search and seizure by a complex statute called the Privacy Protection Act, 42 U.S.C. § 2000aa. In order to understand the scope and intricacy of this statute and how it might apply to computer searches, it helps to begin with the case which prompted it.
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B. THE PRIVACY PROTECTION ACT, 42 U.S.C. § 2000aa
1. A Brief History of the Privacy Protection Act
On April 9, 1971, nine police officers in California responded to Stanford University Hospital to disperse a large group of demonstrators. The demonstrators resisted, and they ultimately attacked and injured all nine officers. Two days later, on April 11, The Stanford Daily, a student newspaper, carried articles and photographs devoted to the student protest and the clash between these protestors and the police. Believing that The Stanford Daily might possess additional photographs that would identify other protestors, the police sought and obtained a search warrant to search the newspaper's offices.
A month after the search, The Stanford Daily brought a civil action alleging violations of the First, Fourth and Fourteenth Amendments. In support of their claims, the plaintiffs alleged that (1) the Fourth Amendment forbade the issuance of search warrants for evidence in the possession of those not suspected of criminal activity and (2) the First Amendment prohibited the use of search warrants against members of the press and, instead, required the use of subpoenas duces tecum. Zurcher v. Stanford Daily, 436 U.S. 547 (1978). The Supreme Court disagreed with both claims, holding that the use of a search warrant, even for the pursuit of "mere evidence," was permitted on both non-suspect third parties and members of the news media.
In response to Zurcher, Congress passed the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa (hereinafter the PPA). The purpose of this legislation, as stated in the Senate Report, is to afford "the press and certain other persons not suspected of committing a crime with protections not provided currently by the Fourth Amendment." S. Rep. No. 874, 96th Cong., 2d Sess. 4 (1980). As the legislative history indicates,
the purpose of this statute is to limit searches for materials held by persons involved in First Amendment activities who are themselves not suspected of participation in the criminal activity for which the materials are sought, and not to limit the ability of law enforcement officers to search for and seize materials held by those suspected of committing the crime under investigation. [7] Id. at 11.
The PPA protects two classes of materials--defined as "work product materials" and "documentary materials"--by restricting beyond the existing limits of the Fourth Amendment when government agents can get warrants to search for or seize them.
It is important to note that, although victims of a search which violates the PPA may not move to suppress the results, the statute does create civil remedies. Moreover, the PPA specifically precludes the government from asserting a good faith defense to civil claims, so in this respect § 2000aa is a strict liability statute.
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Supplement - The Privacy Protection Act
2. Work Product Materials
In general terms, the first category of protected material covers original work in the possession of anyone (including authors and publishers) who intends (from an objective view) to publish it. In construing this statute, the exact language of the definitions is important. Specifically, "work product materials" are defined in 42 U.S.C. § 2000aa-7(b) as
materials, other than contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used, as the means of committing a criminal offense, and--
(1) in anticipation of communicating such materials to the public, are prepared, produced, authored, or created, whether by the person in possession of the materials or by any other person;
(2) are possessed for the purposes of communicating such materials to the public; and
(3) include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material.
When "work product materials" are involved, Title 42, Section 2000aa(a) provides that:
Thus, under § 2000aa(a), there are three situations in which government agents may search for or seize these materials without running afoul of the statute. First, the definition itself specifically excludes contraband or the fruits or instrumentalities of a crime. 42 U.S.C. § 2000aa-7(b). As the drafting Committee noted,
[t]hese kinds of evidence are so intimately related to the commission of a crime, and so often essential to securing a conviction, that they should be available for law enforcement purposes, and, therefore, must fall outside the no search rule that is applied to work product.
S. Rep. 96-874, 96th Cong., 2d Sess. 17, reprinted in 1980 U.S. Code Cong. & Admin. News 3964. In BBS cases, the most common objects of the warrant--stolen access codes, child pornography, and illegally copied software--would clearly fall within the contraband exclusion, so the PPA would not affect a warrant drawn for these materials.
In addition, as quoted above, the PPA creates two exceptions to the general prohibition against seizing "work product." One excepts situations in which life and limb are at stake. The other applies when (1) the work product is evidence of crime, and (2) the person who possesses the materials probably committed it. Even so, this evidence-of-crime exception does not apply if the particular crime "consists of the receipt, possession, communication or withholding of such material. . ." unless the work product was classified or restricted, and the offense is specifically listed in the PPA. 42 U.S.C. § 2000aa(a)(1) and (b)(1). This general evidence-of-crime exception was intended to
codify a core principle of this section, which is to protect from search only those persons involved in First Amendment activities who are themselves not implicated in the crime under investigation, and not to shield those who participate in crime.
H.R. Rep. No. 1064, 96th Cong., 2d Sess. 7. To trigger the exception, however, law enforcement officials are held to a higher-than-usual requirement: they must show probable cause to believe the person who holds the evidentiary materials is a suspect of the crime--the same showing of cause required for an arrest warrant. S. Rep. No. 874, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S. Code Cong. & Admin. News 3950, 3957.
It may, of course, be difficult to invoke this evidence-of-crime exception, particularly at early stages of the investigation. As the Supreme Court noted in Zurcher (and a number of commentators have reiterated since), a search warrant is often most useful early in an investigation when agents have probable cause to believe there is evidence on the premises, but are not ready to arrest any particular person. See Zurcher v. Stanford Daily, 436 U.S. at 561; Testimony of Richard J. Williams, Vice President, National District Attorney's Association, in Hearing before the Committee on the Judiciary, United States Senate, 96th Cong., 2d Sess. on S. 115, S. 1790, and S. 1816 (Mar. 28, 1980) Serial No. 96-59, at 152-3.
The receiving-stolen-property exemption--which prevents agents from using the evidence-of-crime exception when the crime is receipt, possession, communication, or withholding of the same work product materials--was included to prevent law enforcement officials from classifying work product as "stolen goods" to justify seizing it. The Committee report gave as its primary example the case of a reporter who receives an under-the-table copy of a corporate memo discussing a defective product. Knowing the report to be stolen, the reporter might be guilty of receiving or possessing stolen property and thus unprotected by the PPA.
The Committee believed that it would unduly broaden the suspect exception to use the reporter's crime of simple "possession" or "receipt" of the materials (or the similar secondary crimes of "withholding" or "communicating" the materials) as a vehicle for invoking the exception when the reporter himself had not participated in the commission of the crimes through which the materials were obtained.
H. Rep. No. 1064, 96th Cong., 2d Sess. 7 (emphasis added). In light of Congress's stated concern, perhaps this counter-exception does not apply when anything more than simple possession is involved: that is, possession is combined with the mens rea necessary to constitute some other offense (e.g., possession with intent to defraud). See 18 U.S.C. § 1029(a)(3) (making it a crime to "knowingly and with intent to defraud" possess fifteen or more devices which are counterfeit or unauthorized access devices); 18 U.S.C. § 1030(a)(6)(making it a crime to "knowingly and with intent to defraud" traffic in any password or similar information through which a computer may be accessed without authorization).
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3. Documentary Materials
In addition to protecting work product, the PPA covers a second, larger class of items called "documentary materials." The statute defines this term in extraordinarily broad fashion--a definition which covers almost all forms of recorded information which are ". . . possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. . . ." 42 U.S.C. § 2000aa(b) (emphasis added). Specifically, "documentary materials" encompass
materials upon which information is recorded, and includes, but is not limited to, written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magnetically or electronically recorded cards, tapes, or discs, but does not include contraband or the fruits of a crime or things otherwise criminally possessed, or property designed or intended for use, or which is or has been used as, the means of committing a criminal offense.
42 U.S.C. § 2000aa-7(a).
As with "work product materials," the statute excludes from the definition of "documentary materials" any items which are contraband or the fruits or instrumentalities of a crime. 42 U.S.C. § 2000aa-7(a). Further, the two exceptions to the work-product search prohibition, discussed above, also apply to searches for documentary materials: they may be searched and seized under warrant in order to (1) prevent death or serious injury; or (2) to search for evidence of crime held by a suspect of that crime. (This last exception includes all its attendant internal exemptions, examined above, relating to crimes of possession or receipt.)
Additionally, the PPA allows agents to get a warrant for documentary materials under two more circumstances found at 42 U.S.C. § 2000aa(b):
In drawing these additional exceptions, Congress anticipated some of the factors a court might consider in determining whether relevant documentary materials could be lost to the government. These factors include whether there is (1) a close relationship (personal, family, or business) between the suspect and the person who holds the material, or (2) evidence that someone may hide, move, or destroy it. S. Rep. 96-874, 96th Cong., 2d Sess. 13, reprinted in U.S. Code Cong. & Admin. News 3950, 3959-60.
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4. Computer Searches and the Privacy Protection Act
The Privacy Protection Act only applies to situations where law enforcement officers are searching or seizing (1) work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication; or (2) documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a) and (b). Before the computer revolution, the statute's most obvious application was to traditional publishers, such as newspaper or book publishers. The legislative history makes clear, however, that the PPA was not intended to apply solely to the traditional news media but was meant to have a more sweeping application. As then-Assistant Attorney General for the Criminal Division Phillip B. Heymann testified:
While we considered the option of a press-only bill, this format was rejected partially because of the extreme difficulties of arriving at a workable definition of the press, but more importantly because the First Amendment pursuits of others who are not members of the press establishment are equally as important and equally as susceptible to the chilling effect of governmental searches as are those of members of the news media.
H. Rep. No. 1064, 96th Cong., 2d Sess., Transcript of Statement on File, at 4.
With the widespread proliferation of personal computers, desktop publishing, and BBS services, virtually anyone with a personal computer and modem can disseminate to other members of the public (especially those who have appropriate hardware and software) a "newspaper. . .or other similar form of public communication." Thus, the scope of the PPA may have been greatly expanded as a practical consequence of the revolution in information technology--a result which was probably not envisioned by the Act's drafters.
Before searching any BBS, therefore, agents must carefully consider the restrictions of the PPA, along with its exceptions. Additionally, they should include any information bearing on the applicability of this statute (and its many exceptions and sub-exceptions) in the warrant affidavit. That said, it is also important to recognize that not every sysop who possesses information necessarily has an intent to disseminate it to the public. Nor is every BBS engaged in a "similar form of public communication."
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a. The Reasonable Belief Standard
When addressing work product materials, the statute, by its terms, only applies when the materials are possessed by a person "reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication." 42 U.S.C. § 2000aa(a). In non-computer contexts, the courts have concluded that it is not enough just to possess materials a professional reporter might possess. In addition, there must be some indication the person intended to disseminate them. In Lambert v. Polk County, Iowa, 723 F. Supp. 128 (S.D. Iowa 1989), for example, the plaintiff Lambert captured a fatal beating on videotape. Police investigating the incident seized the tape from Lambert and, shortly thereafter, Lambert contracted to sell the tape to a local television station. After the police refused to relinquish the tape, the television station and Lambert sued for injunctive relief claiming, among other things, a violation of 42 U.S.C. § 2000aa. While the district court granted relief on other grounds, it held that neither the television station nor Lambert was likely to prevail on a 42 U.S.C. § 2000aa claim. The television station was not the aggrieved party, and "there was nothing about the way Lambert presented himself [to the officers] that would have led them to reasonably believe that Lambert's purpose was to make a dissemination of the videotape to the public." Lambert, 723 F. Supp. at 132. But cf. Minneapolis Star & Tribune Co. v. United States, 713 F. Supp. 1308 (D. Minn. 1989)(plaintiffs from whom videotapes were seized at robbery scene were successful in PPA claim because agents apparently had independent knowledge that plaintiffs represented the established media).
The reasonable belief standard was also important in the district court opinion in Steve Jackson Games v. United States, 816 F. Supp. 432 (W.D. Tex. 1993), appeal filed on other grounds, (Sept. 17, 1993). To understand the scope of this opinion, it is important to put it in the context of its facts. In early 1990, the United States Secret Service began investigating potential federal computer crimes under 18 U.S.C. § 1030. The Secret Service learned that a Bell South computer system had been invaded, and that the computer hackers were attempting to decrypt passwords which would allow them into computer systems belonging to the Department of Defense.
During the course of this investigation, the Secret Service received information implicating an individual who was employed by Steve Jackson Games, a Texas company that published books, magazines, box games, and related products. Steve Jackson Games used computers for a variety of business purposes, including operating an electronic bulletin board system ("BBS"). The Secret Service was informed that the suspect was one of the sysops of the Steve Jackson Games BBS, and that he could delete any documents or information in the Steve Jackson Games computers and bulletin board. Even so, none of the other sysops nor the company itself was ever a suspect in the investigation.
On February 28, 1990, the Secret Service obtained a federal warrant to search the offices of Steve Jackson Games and to seize various computer materials. The warrant covered:
Computer hardware. . .and computer software. . . and written material and documents relating to the use of the computer system, documentation relating to the attacking of computers and advertising the results of computer attacks. . ., and financial documents and licensing information relative to the computer programs and equipment at [the company's offices] which constitute evidence, instrumentalities and fruits of federal crimes, including interstate transportation of stolen property (18 U.S.C. 2314) and interstate transportation of computer access information (18 U.S.C. 1030(a)(6)). This warrant is for the seizure of the above described computer and computer data and for the authorization to read information stored and contained in the above described computer and computer data.
The Secret Service executed the warrant on March 1, 1990. The agents seized two of thirteen functioning computers, and one other computer that was disassembled for repair. The Secret Service also seized a large number of floppy disks, a printer, other computer components, and computer software documentation. Steve Jackson Games immediately requested the return of the seized materials, but the agency retained most of the materials for several months before returning them. No criminal charges were brought as a result of this investigation.
In May 1991, plaintiffs (Steve Jackson Games; the company's owner and sole shareholder, Steve Jackson; and several individual users of the company's BBS) filed suit against the Secret Service and the United States, alleging violations of the Privacy Protection Act. They also claimed violations of the Stored Electronic Communications Statute, discussed in greater detail at "STORED ELECTRONIC COMMUNICATIONS," infra p. 82.
Following a bench trial, the court determined that the defendants had violated the Privacy Protection Act. The court held that the materials seized by the Secret Service (in particular, the draft of a book about to be published) included "work product materials" and "documentary materials" protected by the Privacy Protection Act. The court decided that seizing these materials did not immediately violate the statute, however, because at the time of the seizure, the agents did not (in the language of the statute) "reasonably believe[]" that Steve Jackson Games "ha[d] a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. . . ." This was true even though "only a few hours of investigation" would have revealed it. Id. at 440 n.8. However, the court held that a violation did occur on the day after the search when at least one agent learned the materials were protected by the statute and failed to return them promptly.
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b. Similar Form of Public Communication
As noted above, the PPA applies only when the materials are possessed by a person reasonably believed to have a purpose to disseminate to the public "a newspaper, book, broadcast, or other similar form of public communication." 42 U.S.C. § 2000aa (emphasis added). Not every BBS will satisfy this standard. For example, a BBS that supplies unauthorized access codes to a small group of phone phreakers is not disseminating information to the public, nor is it engaging in a form of public communication similar to a newspaper. (Of course, the contraband exception will probably also apply in such a case).
The exact scope of the PPA remains uncertain, and the recent opinion in Steve Jackson Games does not clarify the issue. There the court found a cognizable PPA violation arising from the Secret Service's search and prolonged seizure of the successive drafts of a book Steve Jackson was soon to publish. But, just as important, the court did not hold that seizing the Steve Jackson BBS likewise violated the statute. Instead, the court held that "[i]n any event, it is the seizure of the 'work product materials' that leads to the liability of the United States Secret Service and the United States in this case." 816 F. Supp at 441. Indeed, one of the attorneys who represented Steve Jackson Games reached a similar conclusion:
Though the results in the SJG case were very good on balance, a couple of major BBS issues were left for better resolution on another day. . . . [One issue] is the finding that SJG was a 'publisher' for purposes of the PPA. This holding. . .leaves the applicability of the PPA largely undetermined for other BBS'. Steve Jackson Games was a print publisher, and its computers were used to support the print publishing operation. What about BBS' that publish their information in electronic form only? What about BBS' that do not publish anything themselves in the traditional sense, but host public conferences? The SJG case simply does not give guidance on when a non-printing BBS qualifies as a publisher or journalistic operation for purposes of PPA protection. Rose, Steve Jackson Games Decision Stops the Insanity, Boardwatch, May 1993, at 53, 57.
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c. Unique Problems: Unknown Targets and Commingled Materials
Applying the PPA to computer BBS searches is especially difficult for two reasons. First, early in an investigation, it is often impossible to tell whether the BBS sysop is involved in the crime under investigation. But unless agents have probable cause to arrest the sysop at the time of the search, the evidence-held-by-a-target exception in 42 U.S.C. § 2000aa would not apply.
Second, because most computers store thousands of pages of information, targets can easily mix contraband with protected work product or documentary materials. For example, a BBS trafficking in illegally copied software (which, along with the computers used to make the copies, is subject to forfeiture) may also be publishing a newsletter on stamp collecting. If agents seized the computer (or even all the data), the seizure would necessarily include both the pirated software and the newsletter. Assuming the stamp-collectors' newsletter was completely unrelated to the criminal copyright violations and also that it qualified as a "similar form of public communication," the seizure might violate the plain wording of the PPA.
There are, as yet, no cases addressing the status of PPA-protected materials which are commingled with contraband or evidence of crime. However, in construing the Fourth Amendment, the courts have recognized that there is sometimes no practical alternative to seizing non-evidentiary items and sorting them out later. See National City Trading Corp. v. United States, 635 F.2d 1020 (2d Cir. 1980)(space used by a law office and by a targeted business operation was so commingled that the entire suite, really being one set of offices, was properly subject to search); United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982)("Cases may arise in which stolen goods are intermingled with and practically indistinguishable from legitimate goods. If commingling prevents on site inspection, and no practical alternative exists, the entire property may be seizable, at least temporarily."); United States v. Tropp, 725 F. Supp. 482, 487-88 (D. Wyo. 1989)("Some evidence not pertinent to the warrant was seized. . .only because it had been commingled or misfiled with relevant documents. That evidence was returned. . . . In sum, the search warrant comported with the mandate of the Fourth Amendment and the search conducted pursuant thereto was not unreasonable."). (For a more extensive discussion of commingled materials and off-site searches, see "DECIDING WHETHER TO CONDUCT THE SEARCH ON-SITE OR TO REMOVE HARDWARE TO ANOTHER LOCATION," supra p. 53.) Of course, these commingling cases involve the Fourth Amendment, not 42 U.S.C. § 2000aa, and it remains to be seen whether these holdings will apply to the Privacy Protection Act.
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5. Approval of Deputy Assistant Attorney General Required
On September 15, 1993, Deputy Attorney General Philip B. Heymann issued a memorandum which requires that all applications for a warrant issued under 42 U.S.C. § 2000aa(a) must be authorized by the Assistant Attorney General for the Criminal Division (AAG), upon the recommendation of the U.S. Attorney or (for direct Department of Justice cases) the supervising Department of Justice attorney.
On December 9, 1993, Jo Ann Harris, the Assistant Attorney General (AAG) for the Criminal Division, delegated this authority by memorandum to the Deputy Assistant Attorneys General of the Criminal Division. There are emergency procedures for expediting the approval in cases which require it. All requests for authorization--emergency or routine--should be directed to the Chief, Legal Support Unit of the Office of Enforcement Operations in the Criminal Division (202-514-0856).
If agents or prosecutors are planning a search and seizure of electronic evidence in a case in which the PPA may apply, we urge them to contact the Computer Crime Unit (202-514-1026) immediately to discuss the investigation and any new legal developments in this area.
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C. STORED ELECTRONIC COMMUNICATIONS
There are special statutory rules protecting some electronic communications in electronic storage. Anyone who provides an electronic communication service or remote computing services to the public, is prohibited by 18 U.S.C. § 2702 from voluntarily disclosing the contents of the electronic communications it stores or maintains on the service. A "remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system. 18 U.S.C. § 2711(2).
It is not entirely clear what sorts of electronic communications services will be found to provide "public" service. Generally speaking, "public" means available to all who seek the service, even if there is some requirement, such as a fee. It is probably safe to assume that any service permitting "guest" or "visitor" access is "public." On the other hand, the term should not be read to cover business networks open only to employees for company business. If that business network is connected to the Internet (an extensive world-wide network), it may be part of a "public" system, but this does not necessarily mean that the corporate LAN (local-area network) becomes a "public" service.
There are several important exceptions to § 2702's non-disclosure rule, including (1) a provision under 18 U.S.C. § 2702(b)(3) allowing a person or entity to disclose the contents of a communication with the lawful consent of the originator, an addressee, or the intended recipient of such communication (or the subscriber in the case of a remote computing service), and (2) a provision under 18 U.S.C. § 2702(b)(6) allowing disclosure to a law enforcement agency if the contents were inadvertently obtained and appear to pertain to the commission of a crime.
For the government to obtain access to a "stored electronic communication," it must follow the dictates of 18 U.S.C. § 2703, which sets out different rules depending upon how long the particular communication has been in electronic storage. That section provides that "a governmental entity may require the disclosure by a provider of electronic communication service of the contents of an electronic communication, that is in electronic storage. . .for one hundred and eighty days or less, only pursuant to a warrant issued under the Federal Rules of Criminal Procedure or equivalent state warrant." 18 U.S.C. § 2703(a)(emphasis added). If the information has been stored for more than 180 days, prosecutors may use either a Rule 41 search warrant (without notice to the customer or subscriber) or an administrative subpoena, grand jury subpoena, trial subpoena, or a court order pursuant to 18 U.S.C. § 2703(d) (with notice to the customer or subscriber).
The two terms underlined above merit further discussion. First of all, it is important to note that not all electronically stored communications are covered by this section. The electronic communication must be transmitted on a system that affects interstate or foreign commerce, 18 U.S.C. § 2510(12), and must be in electronic storage. "Electronic storage" means any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof or any backup of this communication. 18 U.S.C. § 2510(17).
To understand the importance of this definition, it is critical to know how electronic mail works. Generally speaking, e-mail messages are not transmitted directly from the sender's machine to the recipient's machine; rather, the e-mail message goes from the sending machine to an e-mail server where it is stored (i.e., kept in "electronic storage"). A message is then sent from the server to the addressee indicating that a message for the addressee has been stored. The actual message remains on the server, however, until the addressee retrieves it by having a copy sent to his machine. Often, both the sender and receiver can delete the e-mail from the server.
Section 2703 protects the electronic communication while it is stored in the server in this intermediate state. [8] Once a message is opened, however, its storage is no longer "temporary" nor "incidental to. . .transmission," and it thus takes on the legal character of all other stored data. Therefore, the statute does not apply to all stored communications, such as word processing files residing on a hard drive, even when these files were once transmitted via e-mail.
The other highlighted term--"require the disclosure"--seems to suggest that § 2703 only applies when the government seeks to compel the service provider to produce the electronic mail, not when government agents actually seize it. With this in mind, the statute's cross-reference to Rule 41 is confusing, because Rule 41 authorizes the government to "seize" items, not to "require [their] disclosure." To speak in terms of requiring the disclosure of electronic mail, rather than of seizing it, seems to connote a process of serving subpoenas, not of executing warrants.
On the other hand, Congress may have simply assumed that most system providers would be disinterested in the "search," and that, as a practical matter, the service provider would actually retrieve and turn over to the government those files of suspect-users listed in the warrant. In mentioning Rule 41, Congress may not have been focusing on who would actually do the retrieval, but rather on what level of proof would be required before electronic communications in electronic storage could be procured for a criminal investigation. Therefore, the statute's references to warrants and Rule 41 seem designed to insure that, no matter who actually searches the system, the government will be held to a probable-cause standard--even if the system provider would have been just as willing to honor a subpoena. See H.R. Rep. No. 647, 99th Cong., 2d Sess., at 68 ("The Committee required the government to obtain a search warrant because it concluded that the contents of a message in storage were protected by the Fourth Amendment . . . . To the extent that the record is kept beyond [180 days] it is closer to a regular business record maintained by a third party and, therefore, deserving of a different standard of protection.").
Indeed, it is entirely reasonable to read this statute as Congress's effort to regulate primarily the duties of service providers to protect the privacy of their subscribers in regard to all third parties, including law enforcement. The statute may not have fully contemplated those cases in which the system provider (rather than the subscriber) is, or may be, implicated in the criminal investigation.
There is, unfortunately, no case law clearly addressing this issue. In a recent civil suit, the government was held liable for seizing electronic mail on an electronic bulletin board service (BBS), even though the agents had a valid warrant. [9] Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993), appeal filed on other grounds, (Sept. 17, 1993). In that case, plaintiffs sued following a search by the Secret Service of computers and other electronic storage devices which belonged to the company. (For a more complete description of the facts of the case, see the discussion at p. 77.) One of the computers seized by the Secret Service was the computer used by Steve Jackson Games to operate its BBS. The hard disk of the BBS computer contained a number of private e-mail messages, some of which had not yet been accessed by their addressees. The district court found that the Secret Service read e-mail messages on the computer and subsequently deleted certain information and communications, either intentionally or accidentally, before returning the computer to Steve Jackson Games. Id. at 441. Here, the court held that the Secret Service "exceeded the Government's authority under the statute" by seizing and examining the contents of "all of the electronic communications stored in the [company's] bulletin board" without complying with the statute's requirements for government access. The court's opinion never addressed, however, the interplay between § 2703 and Rule 41, so it sheds no light on the proper interpretation of § 2703(a). In fact, the court never cited § 2703(a) at all. Instead, the court discussed the requirements of § 2703(d), a provision that allows the government to get a court order, upon a showing that the communication sought is relevant to a legitimate law enforcement inquiry, when the communication has been in storage more than 180 days or is held by a remote computing service. (The court did not find how long the searched communications were in storage, but did hold that Steve Jackson was a remote computing service.) Even under this lesser standard--§ 2703(a) requires a search warrant based upon probable cause--the court held that the government's search was improper, noting that the government did not advise the magistrate, by affidavit or otherwise, that the BBS contained private electronic communications between users, nor how the disclosure of the contents of those communications related to the investigation.
In most cases, of course, the electronic communications sought will be in storage 180 days or less, and, therefore, may be obtained "only pursuant to a warrant." 18 U.S.C. § 2703(a)(emphasis added). When preparing a warrant to search a computer, investigators should specifically indicate whether there is electronic mail on the target computer. If the agents intend to read those electronic communications, the warrant should identify whose mail is to be read, and establish that those electronic communications are subject to search under Fed. R. Crim. P. 41(b) (Search and Seizure, Property Which May Be Seized With a Warrant).
Supplement - Stored Electronic Communications
Go to . . . Table of Contents - Main Guidelines
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[7] The Department had previously promulgated regulations on issuing subpoenas directly to members of the news media or indirectly for their telephone toll records. The regulations also addressed interrogating, indicting, or arresting members of the press. See 28 C.F.R. § 50.10. [Back]
[8] When a sysop backs up the mail server to protect against system failure, all e-mails stored on the server will be copied. Thus, if the e-mail is later deleted from the server, the backup copy remains. The statute protects this copy as well. 18 U.S.C. § 2510(17)(B). [Back]
[9] Pursuant to 18 U.S.C. § 2707(d), a good faith reliance on a court warrant is a complete defense to any civil action. The court summarily rejected the defense, stating that it "declines to find this defense by a preponderance of the evidence in this case." Id. at 443. [Back]