ORDER GRANTING PLAINTIFF'S MTION FOR REVIEW OF MAGITRATE JUDGE'S DECISION RE PLAINTIFF'S MOTION TO QUASH SUBPOENA
MARGARET M. MORROW, District Judge.
Plaintiff Buckley Crispin filed this action on December 29, 2009 against Christian Audigier, Christian Audigier, Inc. ("CAI"), and their various sublicensees.
Crispin pleads five causes of action: (1) breach of contract against CAI and Audigier; (2) copyright infringement against all defendants; (3) breach of the covenant of good faith and fair dealing against Audigier and CAI; (4) declaratory relief regarding the works of art against all defendants; and (5) constructive trust against all defendants.
On February 10, 2010, defendants served subpoenas duces tecum on four third-party businesses and social networking websites: Black Market Art Company, Facebook, Media Temple, Inc, and MySpace,
On February 24, 2010, Crispin filed an ex parte motion to quash the subpoenas that was heard by Judge John E. McDermott. Crispin raised three arguments regarding the subpoenas served on Media Temple, Facebook, and MySpace: (1) that they sought electronic communications that third-party Internet Service Providers ("ISPs")
Judge McDermott rejected each of Crispin's arguments. With respect to the argument that the information would be irrelevant because the Copyright Act does not permit an oral transfer of rights, Judge McDermott noted that a nonexclusive license is not a transfer of ownership and does not require a writing. He held that, because the nature of the transfer is the issue in this case and because the subpoenas seek information regarding that subject, the relevance objection was not well taken.
Judge McDermott concluded that the SCA did not apply because that Act reaches only electronic communication service ("ECS") providers and third-party businesses are not ECS providers as defined in the statute. Judge McDermott also concluded
Judge McDermott rejected Crispin's generalized overbreadth and privacy arguments because he provided "no declaration or basis for these assertions, [did not] explain[] or support[] his trade secret argument, and the subpoenas expressly exclude[d] communications with Crispin's attorney."
Crispin argued that the Black Market subpoena sought information regarding artwork sold through Black Market that is not the subject of this lawsuit. Judge McDermott credited Audigier's and CAI's argument that the sale of products through Black Market that are designed by Crispin but do not bear Audigier's brand would help resolve whether and to what extent sales of Audigier products bearing Crispin designs are driven by Audigier's brand or Crispin's design. He quashed two requests, which collectively sought all communications regarding Crispin or his artwork, as overbroad and not tied to claims or defenses in the lawsuit. Judge McDermott requested additional briefing regarding Black Market's payments to Crispin, noting Crispin's interest in not revealing payments he received to the general public. Judge McDermott also noted that it was not immediately obvious why Crispin's profit was relevant.
Plaintiff has timely moved for reconsideration of Judge McDermott's decision insofar as it concludes that Media Temple, Facebook, and MySpace are not subject to the SCA.
A magistrate judge has authority to hear matters that are not dispositive of a claim or defense. See FED.R.CIV.PROC. 72. These include discovery motions. See Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir.1991) ("Nondispositive issues include discovery sanctions"); Hoar v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990) ("Matters concerning discovery generally are considered `nondispositive' of the litigation"). Under Rule 72(a), a party may serve and file objections to a magistrate judge's order that concerns a nondispositive pretrial matter "[w]ithin 10 days after being served with a copy of the magistrate judge's order." FED.R.CIV.PROC. 72(a); see CA CD L.R. 72-2.1 ("Any party objecting under F.R.Civ.P. 72(a) to a Magistrate Judge's ruling on a pretrial matter not dispositive of a claim or defense must file a motion for review ... within ten (10) days of an oral ruling which the Magistrate Judge indicates will not be followed by a written ruling, or within ten (10) days of service of a written ruling").
Normally, a magistrate judge's order can be reversed by the district court only if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); FED. R.CIV.PROC. 72(a); Bhan, 929 F.2d at 1414.
"Acting as an appellate court, this Court has the power to `affirm, modify, vacate, set aside or reverse' the magistrate judge's order and `may remand the cause and direct the entry of such appropriate judgment, decree or order, or require such further proceedings to be has as may be just under the circumstances.'" United States v. Ramirez, No. CR F 08-0239 LJO, 2008 WL 5397497, *2 (E.D.Cal. Dec. 24, 2008) (quoting 28 U.S.C. § 2106). See also Wolf v. Geico Insurance Co., 682 F.Supp.2d 197, 198 (D.R.I.2010) (vacating a magistrate judge's order staying discovery on an insurance claim pending resolution of a separate breach of contract claim and remanding to the magistrate judge to weigh the risk of prejudice to the insurer posed by permitting discovery against the possible efficiencies to be gained).
Congress passed the Stored Communications Act in 1986 as part of the Electronic Communications Privacy Act. "The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address." Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir.2008) (citing Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 GEO. WASH. L.REV. 1208, 1209-13 (2004)).
The statute distinguishes between a remote computing service ("RCS") provider and an electronic communication service ("ECS") provider, establishing different standards of care for each. Quon, 529 F.3d at 900. The SCA defines an ECS provider as "any service which provides to users thereof the ability to send or receive wire or electronic communications." 18 U.S.C. § 2510(15). With certain enumerated exceptions, it prohibits an ECS provider from "knowingly divulging] to any person or entity the contents of a communication while in electronic storage by that service." Id., §§ 2702(a)(1), (b).
An ECS provider is prohibited from divulging only "the contents of a communication while in electronic storage by that service." 18 U.S.C. § 2702(a)(1). "Electronic storage" is "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication." Id., § 2510(17). By contrast, an RCS provider may not divulge the content of any communication received by electronic transmission that is carried or maintained on its service for a customer or subscriber "solely for the purpose of providing storage or computer processing services to [the] subscriber or customer, if the provider is not authorized to access the contents of [the] communications for purposes of providing . . . services other than storage or computer processing." Id., § 2702(a)(2).
Defendants argued to Judge McDermott, and again in this court, that Crispin cannot assert the rights of Media Temple, Facebook, and MySpace, none of whom moved to quash the subpoenas directed to them. Judge McDermott did not address this issue in his decision.
"Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought." 9A Charles Wright & Arthur
At least two district courts have concluded that individuals have standing to move to quash a subpoena seeking personal information protected by the SCA. In J.T. Shannon Lumber Co., Inc. v. Gilco Limber, Inc., Civil Action No. 2:07-C119, 2008 WL 3833216 (N.D.Miss. Aug. 14, 2008), the district court found that "because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider." Id. at *1. The court finds J.T. Shannon Lumber persuasive. Specifically, it concludes that an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information. The court therefore finds that Crispin had standing to bring a motion to quash. See also Hone v. Presidente U.S.A. Inc., No. 5:08-mc-80071-JF, 2008 U.S. Dist. LEXIS 55722, *4 (N.D.Cal. July 21, 2008) (quashing, on plaintiff's motion, a subpoena delivered to Yahoo that sought emails from plaintiffs email account because it complying with the subpoena would result in an "impermissible disclosure of information").
Defendants also argue that the SCA explicitly permits the service of subpoenas duces tecum. Judge McDermott concluded that the following statutory provision permitted disclosure pursuant to subpoena:
The statute establishes a complex scheme pursuant to which a governmental entity
Were it accepted, defendants' argument would lead to the anomalous result that, in order to obtain information protected by the SCA, a governmental entity would have to comply with the Federal Rules of Criminal Procedure governing warrants, or for communications more than 180 days old, statutory procedures requiring notice to the subscriber before an administrative subpoena could issue, while a civil litigant could procure information simply by serving a subpoena duces tecum. Such an inference cannot be drawn on the basis of statutory silence alone. Cf. United States v. Brown, 333 U.S. 18, 27, 68 S.Ct. 376, 92 L.Ed. 442 (1948) ("No rule of construction necessitates our acceptance of an interpretation resulting in patently absurd consequences"). The interpretation defendants advocate, moreover, overlooks the overall import and structure of the statute, which is at heart a broad prohibition on disclosure with limited and carefully regulated exceptions. See Food and Drug Admin, v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme and fit, if possible, all parts into an harmonious whole" (internal citations and quotations omitted)). More fundamentally, it ignores the last three words of § 2703(e). That section states that no civil liability accrues where a provider acts pursuant to a "subpoena ... under this chapter." 18 U.S.C. § 2703(e) (emphasis supplied). See General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 582, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) ("[S]tatutory language must be read in context since a phrase gathers meaning from the words around it"). This phrase clearly references subpoenas that governmental entities are authorized under § 2703(b), not civil subpoenas duces tecum.
As Robison notes:
See also Viacom International Inc. v. Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y.2008) (holding that the SCA prohibits disclosure of information pursuant to a civil subpoena because the Act "contains no exception for disclosure of such communications pursuant to civil discovery requests"); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611
In short, given the fact that § 2703(e)'s reference to subpoena is modified by the phrase "under this chapter," given the overall structure and purpose of the statute, as well as § 2703(e)'s place in it, and given the supporting case law, the court concludes that § 2703(e) is not susceptible of the interpretation defendants propose, and that plaintiff has standing to move to quash the subpoenas that were issued under the SCA.
The parties provided only minimal facts regarding the three third-party entities that were subpoenaed in the papers filed with Judge McDermott. In his portion of the joint stipulation, plaintiff, citing only the home web page of each company, stated: "Media Temple, Inc. is a company which provides web hosting services, inter alia, webmail and website content features. Facebook and MySpace, Inc., are companies which provide social networking websites that allow users to send and receive messages, through posting on usercreated `profile pages' or through private messaging services."
Although some courts have considered the SCA's application to certain types of providers, none appears to have addressed whether social-networking sites fall within the ambit of the statute.
Quon also found support in the Ninth Circuit's prior decision in Theofel, in which the court concluded that a "provider of email services" was "undisputedly an ECS." Id. at 902 (citing Theofel, 359 F.3d at 1075). See also Warshak v. United States, 532 F.3d 521, 523 (6th Cir.2008) (holding that the statutory definition of an ECS provider includes "basic e-mail services," citing Patricia L. Bellia et al., CYBERLAW: PROBLEMS OF POLICY AND JURISPRUDENCE IN THE INFORMATION AGE 584 (2d ed. 2004)), while the statutory definition of an RCS provider includes provision of "longerterm storage," citing Kerr, supra, at 1216); Konop, 302 F.3d at 879 (concluding, based on the SCA's legislative history, that "Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards"); S. REP. No. 99-541 at 14, 1986 U.S.C.C.A.N. 3555, 3568 ("Existing telephone companies and electronic mail companies are providers of electronic communications services"); United States v. Weaver, 636 F.Supp.2d 769, 770 (C.D.Ill.2009) (concluding that Microsoft, which provided email service through the Hotmail website, was both an ECS provider and an RCS provider); Jayne v. Sprint PCS, No. CIV S-07-2522 LKK GGH P, 2009 WL 426117, *6 (E.D.Cal. Feb. 20, 2009) (concluding that Sprint, a cell phone service provider, was an ECS provider); Becker v. Toca, Civil Action No. 07-7202, 2008 WL 4443050, *4 (E.D.La. Sept. 26, 2008) (noting that "[c]ourts have interpreted the statute to apply primarily to telephone companies, Internet or e-mail service providers, and bulletin board services," but declining to dismiss a claim under the SCA that alleged defendant sent a virus to plaintiff's computers that infected them because it was unclear "to what extent the [virus] may have accessed or retrieved information stored with an electronic communication service provider," since the fact that plaintiff used personal and office computers in his business might qualify him as an ECS provider); Kaufman v. Nest Seekers, LLC, No. 05 CV 6782(GBD), 2006 WL 2807177, *6 (S.D.N.Y. Sept. 26, 2006) ("An on-line business which provides its customers, as part of its commercial offerings, the means by which the customers may engage in private electronic communications with third-parties may constitute a
Judge McDermott cited Quon for the proposition that a company is an ECS provider if it "served as a conduit for the transmission of electronic communications from one user to another, and stored those communications as a backup for the user."
The court concludes that, although largely sound, Judge McDermott's reading of Quon and the SCA is contrary to law in certain respects. First, Judge McDermott interpreted the descriptive language in Quon as a broadly applicable definition of an ECS provider rather than as a description of a particular type of provider, i.e., a text-messaging pager service. Treating Quon's formulation as the exclusive definition of ECS provider, however, improperly limits the reach of the statute, which extends to "any service which provides to users thereof the ability to send or receive wire or electronic communications." 18 U.S.C. § 2510(15) (emphasis supplied).
Judge McDermott also found that Facebook, MySpace, or Media Temple engaged in public messaging only and concluded that this fact was dispositive. In reaching this conclusion, Judge McDermott apparently misconstrued the information plaintiff provided concerning the nature of the services the third-party companies provided. It is clear, for instance, that Media Temple provides "webmail," which is a "service that allows users to view email messages."
Recognizing that all three sites provide private messaging or email services, the court is compelled to apply the voluminous case law cited above that establishes that such services constitute ECS. Moreover, the information the parties gave Judge McDermott establishes that Facebook wall postings and the MySpace comments are not strictly "public," but are accessible only to those users plaintiff selects. The court therefore finds relevant, if not controlling, the authority regarding private electronic bulletin board services ("BBS").
"Computer bulletin boards generally offer both private electronic mail service and newsgroups. The latter is essentially email directed to the community at large, rather than a private recipient." MTV Networks v. Curry, 867 F.Supp. 202, 204 n. 3 (S.D.N.Y.1994).
Unquestionably, the case law, and in particular the Ninth Circuit's decision in Konop, require that the BBS be restricted in some fashion; a completely public BBS does not merit protection under the SCA. Kaufman, at *5 ("Only electronic bulletin boards which are not readily accessible to the public are protected under the Act"); S. REP. No. 99-541, at 36, 1986 U.S.C.C.A.N. 3555, 3590 ("The bill does not for example hinder the development or use of `electronic bulletin boards' or other similar services where the availability of information about the service, and the readily accessible nature of the service are widely known and the service does not require any special access code or warning to indicate that the information is private. To access a communication in such a public system is not a violation of the Act, since the general public has been `authorized' to do so by the facility provider").
The information provided to Judge McDermott and this court, however, makes clear that Facebook permits wall messages to "be viewed by anyone with access to the user's profile page"; MySpace provides the "same" functionality.
That the three entities are ECS providers does not end the court's inquiry, however. The court must also determine whether the information sought by the subpoenas—private messages and postings—constitute electronic storage within the meaning of the statute. As will be seen, this inquiry necessitates that the court consider whether at some point the three entities act as RCS providers with respect to certain stored communications.
As noted, the statute provides two definitions of electronic storage. One definition is found in § 2510(17)(A). See 18 U.S.C. § 2510(17)(A) ("any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof"). As respects this definition, "[s]everal courts have held that [the] subsection . . . covers e-mail messages stored on an ISP's server pending delivery to the recipient." Theofel, 359 F.3d at 1075 (citing In re DoubleClick Inc. Privacy Litigation, 154 F.Supp.2d 497, 511-12 (S.D.N.Y.2001) (holding that "it appears that the section is specifically targeted at communications temporarily stored by electronic communications services incident to their transmission—for example, when an email service stores a message until the addressee downloads it," and applying dictionary definitions of "temporary" and "intermediate" to find that the subsection protects only electronic communications stored "for a limited time" in the "middle" of a transmission, "i.e. when an electronic communication service temporarily stores a communication while waiting
A second definition of "electronic storage" is found in § 2510(17)(B). See 18 U.S.C. § 2510(17)(B) ("any storage of such communication by an electronic communication service for purposes of backup protection of such communication"). The central interpretive difficulty with respect to this definition is whether the communication was stored for "purposes of backup protection," a term that is not defined. Fraser, 352 F.3d at 114 (noting that the term "backup protection" is not defined in the statute or in the legislative history). In Theofel, assessing the storage of a message on an ISP's server after delivery, the court noted that an "obvious purpose ... is to provide a second copy of the message in the event that the user needs to download it again—if, for example, the message is accidentally erased from the user's own computer." Because this was a purpose of storage, the court concluded that storage served as a "backup" for the user. Theofel, 359 F.3d at 1075.
In response to a hypothetical argument made by the United States, the Theofel court reserved decision on a question relevant to this case: "A remote computing service might be the only place a user stores his messages; in that case, the messages are not stored for backup purposes." Theofel, 359 F.3d at 1077.
Given this fact, the Weaver court concluded that as soon as a user opened an email message and maintained that message on the Hotmail website, Microsoft was maintaining the message "solely for the purpose of providing storage or computer processing services to such subscriber or customer." Weaver, 636 F.Supp.2d at 772 (quoting 18 U.S.C. § 2703(b)(2)). Stated differently, at that point Hotmail ceased to be an ECS provider and became an RCS provider, providing remote storage service for the email. Weaver found that such an interpretation was supported by the SCA's legislative history. It cited the House Report, which stated:
In addition to the Weaver court, another district court found that an ECS provider became an RCS provider after a communication had been read and stored. In Flagg
Courts outside the Ninth Circuit and commentators have accused the Ninth Circuit of relying "on a unitary approach, under which service providers contract with their customers to provide either an ECS or an RCS, but not both." Flagg, 252 F.R.D. at 362. It is true that the Ninth Circuit in Quon reversed a district court finding that a single provider provided both ECS and RCS services to the same customer. See Quon v. Arch Wire-less Operating Co., Inc., 445 F.Supp.2d 1116, 1137 (C.D.Cal.2006).
The passage does not state that an entity cannot be both an RCS provider and ECS provider. Rather, the Theofel court held no more than that the entity whose conduct was at issue in that case was not both an ECS and RCS provider; this fact rendered the government's argument that entities often are both irrelevant. The Ninth Circuit's statement that not all RCS providers are also ECS providers by implication suggests that some are. Its reference to that "remote computing services that are also electronic communications services" confirms that it believed an entity could be both an ECS and an RCS provider. Similarly, its statement that not all storage under the sections governing RCS providers is encompassed by the section governing ECS providers underscores that where an entity is both an ECS and RCS provider, which protections apply is a governed by the type of storage involved. A court in the District of Oregon has employed this approach:
For this reason, Weaver and Flagg do not conflict with Ninth Circuit precedent; indeed, they apply the rule set forth in Theofel to different factual circumstances. Weaver, Flagg, and Theofel all concerned email messages, and the court therefore finds them instructive in evaluating Media Temple's webmail service and Facebook's and MySpace's private messaging. As respects messages that have not yet been opened, those entities operate as ECS providers and the messages are in electronic storage because they fall within the definition of "temporary, intermediate storage" under § 2510(17)(A). As respects messages that have been opened and retained by Crispin, under the reasoning of Weaver and Flagg, and the dicta in Theofel, the three entities operate as RCS providers providing storage services under § 2702(a)(2).
By contrast, the district court in Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F.Supp. 432 (W.D.Tex.1993), concluded, without analysis, that an electronic bulletin board was an RCS provider. Id. at 443.
As noted in Konop, the difficulty in interpreting the statute is "compounded by the fact that the [SCA] was written prior to the advent of the Internet and the World Wide Web. As a result, the existing statutory framework is ill-suited to address modern forms of communication like [Facebook and MySpace]. Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results." As the Ninth Circuit further observed, "until Congress brings the laws in line with modern technology, protection of the Internet and websites such as [these] will remain a confusing and uncertain area of the law." Konop, 302 F.3d at 874.
In Snow v. DIRECTV, Inc., No. 2:04-CV-515FTM33SPC, 2005 WL 1226158 (M.D.Fla. May 9, 2005), the district court found that there could be no temporary, intermediate storage in the context of a BBS. The court noted that no one could "allege that the messages are being stored on his particular web site while waiting to be transferred to a final destination. Rather his website is the final destination for the information posted on a bulletin board." Id. at *3.
Nonetheless, "[t]he legislative history of the [SCA] suggests that Congress wanted to protect electronic communications that are configured to be private, such as . . . private electronic bulletin boards." Konop, 302 F.3d at 875. Because Facebook wall postings and MySpace comments, on the one hand, and bulletin postings on a website such as Konop's, on the other, cannot be considered to be in temporary, intermediate storage, the court interprets Konop as holding that the postings, once made, are stored for backup purposes. This reading of Konop is consistent with Theofel and Quon, which held that email messages and pager text-messages, respectively, were held for backup purposes once read.
Additionally, the display purpose defendants posit is hard to separate from a storage function when the user provides access to a large number of people. This is because a storage service necessarily requires a retrieval mechanism to be useful. To retrieve communications in storage, the RCS provider must display those communications in some way. See Flagg, 252 F.R.D. at 359 ("[I]t is difficult to see how an archive of text messages would be of any use or value to a customer if the service provider did not also offer a mechanism for retrieving messages from this archive"). Although here a large number of users, i.e., all of plaintiffs Facebook friends, might access the storage and attendant retrieval/display mechanism, the number of users who can view the stored message has no legal significance. Indeed, basing a rule on the number of users who can access information would result in arbitrary line-drawing and likely in the anomalous result that businesses such as law firms, which may have thousands of employees who can access documents in storage, would be excluded from the statute.
As noted, the statute does not limit storage to retention for benefit of the user only. In this regard, the court analogizes to Theofel, where the Ninth Circuit interpreted the "for purposes of backup protection" language in § 2510(17)(B), and concluded that any backup purpose was sufficient, whether for the benefit of the email user or for the benefit of the ISP. Theofel, 359 F.3d at 1075. Applying this logic to the RCS definition, it does not matter that the stored Facebook wall postings and MySpace comments are available to hundreds or thousands of approved users.
With respect to webmail and private messaging, the court is satisfied that those forms of communications media are inherently private such that stored messages are not readily accessible to the general public. Thus, the court reverses Judge McDermott's order with respect to the Media Temple subpoena and the Facebook and MySpace subpoenas to the extent they seek private messaging. The Media Temple subpoena and those portions of the Facebook and MySpace subpoenas that sought private messaging are therefore quashed. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, however, the court concludes that the evidentiary record presented to Judge McDermott is not sufficient to determine whether the subpoenas should be quashed. The only piece of evidence adduced was a Wikipedia article stating that Facebook permits wall messages to "be viewed by anyone with access to the user's profile page" and that MySpace provides the "same" functionality.
For the foregoing reasons, plaintiff's motion for reconsideration of Judge McDermott's order is granted. The court reverses Judge McDermott's order respecting the Media Temple subpoena and respecting so much of the Facebook and MySpace subpoenas as sought private messages. The Media Temple subpoena and the those portions of the Facebook and MySpace subpoenas that seek private messages are quashed. The court vacates Judge McDermott's order respecting so much of the Facebook and MySpace subpoenas as sought Facebook wall postings and MySpace comments, and remands for further development of the evidentiary record consistent with this order.
As Robison explains, computer networking was in its infancy in 1986. Specifically, at the time Congress passed the SCA in the mid-1980s, "personal users [had begun] subscribing to self-contained networks, such as Prodigy, CompuServe, and America Online," and "typically paid based on the amount of time they were connected to the network; unlike today's Internet users, few could afford to spend hours casually exploring the provider's network. After connecting to the network via a modem, users could download or send email, post messages on a `bulletin board' service, or access information." Robison, supra, at 1198. Notably, the SCA was enacted before the advent of the World Wide Web in 1990 and before the introduction of the web browser in 1994. Id. As a result, the SCA "is best understood by considering its operation and purpose in light of the technology that existed in 1986. The Act is not built around clear principles that are intended to easily accommodate future changes in technology; instead, Congress chose to draft a complex statute based on the operation of early computer networks. To apply the Act to modern computing, courts need to begin by extracting operating principles from a tangled legal framework." Id. at 1204-05.
In contrast to the situation that obtained in the late 1980's and early 1990's, a 2008 report found that nearly 70 percent of people use web-based email, store data or photos online, or use web-based software programs. In the eighteen- to twenty-nine-year-old age group, 77 percent use web-based email. Alexander Scolnik, Note, Protections for Electronic Communications: the Stored Communications Act and the Fourth Amendment, 78 FORDHAM L.REV. 349, 378 (2009). See also Nathaniel Gleicher, Neither a Customer nor a Subscriber Be: Regulating the Release of User Information on the World Wide Web, 118 YALE L.J.1945, 1945 (2009) ("Although the SCA was not intended to be `a catch-all statute designed to protect the privacy of stored Internet communications,' it has been pressed into this role. Without the SCA to balance the interests of users, law enforcement, and private industry, communications will be subjected to a tug-of-war between the private companies that transmit them and the government agencies that seek to access them. Internet users will find themselves with little protection," quoting Kerr, supra, at 1214 (footnote omitted)). The Ninth Circuit has described the SCA as "a complex, often convoluted, area of the law." United States v. Smith, 155 F.3d 1051, 1055 (9th Cir.1998). "[T]he difficulty is compounded by the fact that the [SCA] was written prior to the advent of the Internet and the World Wide Web. As a result, the existing statutory framework is illsuited to address modern forms of communication.... Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results." Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir.2002).
See also Badasa v. Mukasey, 540 F.3d 909, 910 (8th Cir.2008) (noting that Wikipedia is not a sufficiently reliable source on which to rest judicial findings for the reasons stated in Campbell); Kole v. Astrue, No. CV 08-0411-LMB, 2010 WL 1338092, *7 n. 3 (D.Idaho Mar. 31, 2010) ("At this point, it must be noted that, in support of his brief, Respondent cites to Wikipedia. While it may support his contention of what the mathematical symbols of `<' and `>' refer to, Respondent is admonished from using Wikipedia as an authority in this District again. Wikipedia is not a reliable source at this level of discourse. As an attorney representing the United States, Mr. Rodriguez should know that citations to such unreliable sources only serve to undermine his reliability as counsel"); R. Jason Richards, Courting Wikipedia, 44 TRIAL 62, 62 (2008) ("Since when did a Web site that any Internet surfer can edit become an authoritative source by which law students could write passing papers, experts could provide credible testimony, lawyers could craft legal arguments, and judges could issue precedents?"); James Glerick, Wikipedians Leave Cyberspace, Meet in Egypt, WALL ST. J., Aug. 8, 2008, at W1 ("Anyone can edit [a Wikipedia] article, anonymously, hit and run. From the very beginning that has been Wikipedia's greatest strength and its greatest weakness"). Judge McDermott accepted the information, however, and the parties do not dispute it now. The court will therefore consider the evidence presented to Judge McDermott as that is the content of the record on appeal.
The report provided examples that included "physicians and hospitals maintain[ing] medical files in offsite data banks." Id. As a consequence, in Quon, the Ninth Circuit noted that storage was equivalent to a "virtual filing cabinet." Quon, 529 F.3d at 902. At oral argument, defendants' counsel asserted that the definition of an RCS provider did not reach those providing storage services, but only those providing data processing services. Such an interpretation reads the word "storage" out of the statutory definition of an RCS provider and ignores Quon's reliance on the definition when describing storage services as a "virtual filing cabinet." The court declines defendants' invitation to overlook both clear statutory text and binding Ninth Circuit precedent. The court notes that In re Jetblue Airways Corp. Privacy Litigation, 379 F.Supp.2d 299, 310 (E.D.N.Y.2005), cited by defendants at the hearing, is not to the contrary. There, the court analyzed whether Jetblue's online reservation system was an RCS provider and described certain data processing functions not at issue here. Jetblue did not consider the statute's reference to "storage" or whether the reservation system had any storage functionality.
The Senate Report also provided examples of processing information that included "businesses of all sizes transmit[ting] their records to remote computers to obtain sophisticated data processing services." S. REP. No. 99-541, at 3, 1986 U.S.C.C.A.N. 3555, 3557. Noting that the statute had been passed in 1986, the Ninth Circuit observed that the statutory reference to processing concerned the fact that "before the advent of advanced computer processing programs such as Microsoft Excel, businesses had to farm out sophisticated processing to a service that would process the information." Quon, 529 F.3d at 902.
As Robison states:
The Ninth Circuit also concluded that the interpretation advanced by the United States would "drain[] subsection (B) of independent content because virtually any backup of a subsection (A) message [would] itself qualify as a message in temporary, intermediate storage." Id.
The same commentator persuasively argues that a web-based email provider should be considered an RCS provider as well:
At oral argument, defendants asserted that in order for a communication to be stored for backup purposes, it had to be stored in multiple locations. They noted, in this regard, that the messages in Quon had been stored in multiple locations. In Quon, text messages were received on a pager and also retained on the pager service's server. There is no reference in either the district or circuit court opinions to the fact that the messages were retained by the user on his pager. Indeed, given that transcripts for the pager tallied forty-six pages in length, Quon v. Arch Wireless Operating Co., Inc., 445 F.Supp.2d 1116, 1126 (C.D.Cal.2006), it seems likely that many of the pager messages had been deleted from the user's pager and were stored only on the service's server. In any event, defendants' assertion that the Ninth Circuit relied on the fact that text messages were stored in more than one location Defendants misinterpret the Quon opinion.
While the Ninth Circuit's examples of retained messages that have not been saved for backup purposes is not exhaustive, the examples offered suggest that at most, a limited range of messages are not kept for backup purposes. Certainly, the private messages retained in plaintiff's inbox cannot be analogized to messages sent to or from the entity's staff or messages a user has flagged for deletion.