As I mentioned last week, I have a new publication entitled Prosecution and Law Enforcement Access to Information about Electronic Communications. It’s meant to be useful on a range of topics, from phone records and wiretapping, but the most detailed discussion concerns email, text messages, and other stored electronic communications. The very, very simplified version of that section of the paper is that the state can access that type of evidence with a search warrant, and perhaps, in some cases, by other means. In my post announcing the paper, I promised to write about defense access to stored electronic communications, a topic not addressed in the publication. Here I am, making good.
Let’s take a specific example. How, if at all, may a defendant charged with rape access emails that the complainant sent from her Yahoo! email account to a friend, where there is reason to believe that (1) the emails remain on Yahoo!’s servers and (2) the emails may be exculpatory, because they may suggest that the encounter was consensual? (Remember, if the state were seeking the defendant’s incriminating emails to his brother, it could obtain them with a search warrant directed at the defendant’s email service provider, or maybe even with lesser process.)
The short answer is, the defendant can’t access the emails.
Of course, if the complainant still has access to the emails, the defendant can subpoena them from her. But if she doesn’t — for example, if she’s deleted them — or if she isn’t forthcoming with them, the defendant probably can’t obtain the emails from Yahoo!. Under 18 U.S.C. § 2702, most communications service providers, “shall not divulge . . . the contents of” electronic communications except in specified circumstances. None of the enumerated circumstances apply to the defendant’s situation; there is no general exception for compliance with subpoenas or court orders, which are the types of instruments that the defendant would normally employ in pursuing evidence. By contrast, 18 U.S.C. § 2703 provides for compulsory disclosure to “governmental entit[ies]” with appropriate process.
A number of courts have held that the specific nondisclosure command of the statute trumps instruments like subpoenas and court orders, and simply doesn’t allow criminal defendants (or private civil litigants, for that matter) to access stored email from service providers. Apparently, most email providers are, understandably, following these cases and are refusing to produce stored emails in response to defendants’ subpoenas and court orders. A good collection of cases on point appears in Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009), while a case applying the law to bar a criminal defendant from compelling a service provider to give him his own stored email is United States v. Amawi, 552 F.Supp.2d 679 (N.D. Ohio 2008). A useful law review article discussing this issue is Marc J. Zwilliger & Christian S. Genetski, Criminal Discovery of Internet Communications . . ., 97 J. Crim. Law & Criminology 569 (2007), available online here. (That makes two useful law review articles I’ve seen this year, counting this one.)
There are a couple of possible avenues of recourse for our hypothetical defendant. First, because an email provider can produce stored communications with the consent of the account holder, our defendant could try to convince the complainant to consent. Or, he could try to get a court to order her to consent. (There’s a robust debate in the cases about the propriety of that, which I won’t summarize here, but it may be worth a try.) Next, he could try to persuade the prosecution to obtain the email on his behalf. Finally, he could try to argue that the federal statutes are unconstitutional, perhaps on due process grounds, to the extent that they put a class of evidence completely off-limits to him — especially a class of evidence that the prosecution can access. There might be something to that argument, though there aren’t any reported decisions on point, presumably because, to date, defendants have been able to get by using the other methods suggested above.
I’m keen to hear about real-world experiences with this issue. As always, feel free to post a comment or to contact me off-blog.