Stored Communications Act (18 U.S.C. § 2703)
Part of the Electronic Communications Privacy Act (ECPA) (1986). Governs government access to stored electronic communications and transaction records held by third-party service providers.
Three Tiers of Access
| Content Type | Government Tool Required |
|---|---|
| Electronic communication in storage < 180 days | Search warrant (probable cause) |
| Electronic communication in storage ≥ 180 days OR opened email | Search warrant or court order + notice to subscriber |
| Non-content records (subscriber info, IP logs, transaction records) | Subpoena, court order, or warrant |
§ 2703(d) — Court Order Standard
A “specific and articulable facts” order (lower than probable cause) may compel disclosure of non-content records when the government shows:
“specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication … are relevant and material to an ongoing criminal investigation”
In re Application of United States for an Order — courts have debated whether the § 2703(d) standard is mandatory or discretionary when seeking non-content records.
Third-Party Doctrine Tension
Carpenter v. United States (2018): government access to cell-site location information (CSLI) spanning seven days or more requires a warrant under the Fourth Amendment, despite the third-party doctrine — Stored Communications Act notwithstanding, Fourth Amendment sets a floor.
Notice Requirements
- Government may delay notice to the subscriber for up to 90 days (renewable) if notification would jeopardize the investigation
- Service providers cannot disclose to the subscriber that the government has made a request while a non-disclosure order is in effect