The opinion of the court was delivered by: Jeanne E. Scott United States District Judge
JEANNE E. SCOTT, U.S. District Judge
This matter comes before the Court on the Government's Motion to Compel Compliance With Subpoena to Produce Documents (d/e 12) (Motion). For the reasons stated below, this Motion is allowed.
In pursuing a child pornography charge against Defendant Justin Weaver, the Government sought to discover the contents of emails it believes Weaver sent or received at a Microsoft/MSN Hotmail account. The Government submitted a trial subpoena for the records to the Clerk of Court on May 15, 2009, and the Clerk issued the subpoena the same day. On May 19, 2009, the Government executed the subpoena by faxing it to Microsoft/MSN (Microsoft), which accepts such service. The subpoena stated that the Government sought to compel production of "the contents of electronic communications (not in 'electronic storage' as defined by 18 U.S.C. § 2510(17))" and specified that the "[c]ontents of communications not in 'electronic storage' include the contents of previously opened or sent email." Motion, Exhibit 1, Subpoena. According to the Government, Microsoft produced some of the information requested, but it failed to produce the content of previously accessed, viewed, or downloaded emails that had been stored for fewer than 181 days. The Government now has moved to compel production of the contents of these emails.
Neither Weaver nor Microsoft has responded to the Government's Motion, but Microsoft asked the Government to include a letter with the Government's Motion. Microsoft's associate general counsel wrote this letter to the Government explaining that it objected to the Government's subpoena to the extent that it requested material that the Ninth Circuit Court of Appeals has held requires a warrant. Motion, Exhibit 2, Letter. Microsoft asserts that because its headquarters are located within the Ninth Circuit, it must comply with Ninth Circuit precedent. The Government disagrees with Microsoft's position and has asked the Court to compel Microsoft to produce the materials it requested.
The issue here is whether a court can compel an Internet Service Provider (ISP), such as Microsoft, to comply with a trial subpoena and produce the contents of a subscriber's opened emails which are less than 181 days old. Based on provisions of the Stored Wire and Electronic Communications and Transactional Records Access Act (Stored Communications Act), 18 U.S.C. § 2701, et seq., and the Wire and Electronic Communications Interception and Interception of Oral Communications Act (Wiretap Act), 18 U.S.C. § 2510, et seq., a Court can.
The Stored Communications Act governs the disclosure of electronic communications maintained on computers. It sets forth the methods by which the Government may obtain electronic communications, such as email messages, from electronic communication services and providers of remote computing services. Here, Microsoft acted as both an electronic communication service and a provider of remote computing services.*fn1
Under section 2703, governmental entities must use a warrant to obtain certain types of electronic communications, but they can access others using only a trial subpoena. Subsection (a), which sets out the warrant requirement, provides:
A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.
18 U.S.C. § 2703(a). Where an electronic communication "has been in electronic storage in an electronic communications system" for at least 181 days, only a trial subpoena is necessary. Id. Further, only a trial subpoena is necessary for: any wire or electronic communication that is held or maintained on [a remote computing] service--(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from) a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
18 U.S.C. § 2703(b)(2). Thus, for emails less than 181 days old, the question of whether a warrant is necessary turns on whether the emails are "in electronic storage" or are "held or maintained . . . solely for the purpose of providing storage or computer processing services to [the] subscriber or customer." Compare 18 U.S.C. § 2703(a) with 18 U.S.C. § 2703(b)(2). If the emails the Government requested here are in electronic storage, Microsoft need not produce them without a warrant, but if they are held or maintained solely to provide the customer storage or computer processing services, Microsoft must comply with the Government's subpoena.
This determination turns on the difference between "electronic storage" and "storage." Compare 18 U.S.C. § 2703(a) with 18 U.S.C. § 2703(b)(2). Under the Stored Communications Act, these similar terms are not the same. The Stored Communications Act refers back to the Wiretap Act for definitions. 18 U.S.C. § ...