Stored Communications Act

Jessica Nall and Josh Malone discuss legal pitfalls, compliance issues, and the digital minefield that arises when employees use ephemeral messaging apps to conduct business in an article published by Bloomberg Law.

Employees are using communication modes other than company e-mail to communicate for business—including texts and ephemeral messaging apps like WhatsApp or Telegram— which creates challenges for companies investigating potential wrongdoing within its ranks and for government investigators conducting parallel or follow-on inquiries.

When business communications occur on platforms that companies do not control, there can sometimes be no way for them or the company or the government to access the information necessary to understand and remediate compliance failures.

And when important pieces of the factual puzzle are missing, investigators may infer that the unavailable messages contained evidence of wrongdoing. Instead of producing key, potentially exculpatory information, the company risks losing out on cooperation credit with the government or discovery sanctions for spoliation.
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The Ninth Circuit recently heard an appeal that challenges a common tool of law enforcement: “f” letters.

Under section 2703(f) of the Stored Communications Act, law enforcement may compel providers of “electronic communications services” (think Google) to preserve “records and other evidence” (think email) for a period of time. These preservation demands do not require

globe with digital overlayThe fight over whether the government may access the data of companies and individuals that is stored overseas has officially made its way to the U.S. Supreme Court. On October 16, the Supreme Court agreed to review the Second Circuit’s decision in Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by

globe with digital overlayA dispute in California federal court over whether Google must turn over documents stored overseas in response to a search warrant may have major implications for white collar practitioners and their clients. Last week Google asked a California federal judge to review an order by Magistrate Judge Laurel Beeler that required the company to produce content stored outside the United States in response to a warrant. U.S. District Judge William Alsup will hear Google’s motion for de novo review of the order on June 22. In the order at issue, Judge Beeler denied Google’s motion to quash a warrant issued pursuant to the Stored Communications Act (SCA), 18 U.S.C. § 2703. The SCA, in part, requires the disclosure of customer communications or records by internet service providers pursuant to a warrant. The warrant sought documents related to specific Google email accounts, including subscriber information, evidence of specified crimes, and information about the account holders’ true identities, locations, and assets. Google produced information it stored domestically, but argued that the warrant could not reach information stored abroad. Google argued that its legal team in the United States were the only personnel authorized to access and produce the communications, which could be accessed from within the United States. Matter of Search of Content that is Stored at Premises Controlled by Google, No. 16-MC-80263-LB, 2017 WL 1487625, at *2 (N.D. Cal. Apr. 25, 2017).
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