Microsoft and other providers of ECS and RCS jointly as “service providers,” except
where the distinction makes a difference.
As to both services, the Act imposes general obligations of non‐disclosure on
service providers and creates several exceptions to those obligations. Thus, its initial
provision, § 2701, prohibits unauthorized third parties from, among other things,
obtaining or altering electronic communications stored by an ECS, and imposes
criminal penalties for its violation. Section 2702 restricts the circumstances in which
service providers may disclose information associated with and contents of stored
communications to listed exceptions, such as with the consent of the originator or upon
notice to the intended recipient, or pursuant to § 2703. Section 2703 then establishes
conditions under which the government may require a service provider to disclose the
contents of stored communications and related obligations to notify a customer whose
material has been accessed. Section 2707 authorizes civil actions by entities aggrieved
by violations of the Act, and makes “good faith reliance” on a court warrant or order “a
complete defense.” 18 U.S.C. § 2707(e).15
Regarding governmental access in particular, § 2703 sets up a pyramidal
structure governing conditions under which service providers must disclose stored
communications to the government. Basic subscriber and transactional information can
be obtained simply with an administrative subpoena.16 18 U.S.C. § 2703(c)(2). Other
Other provisions of the Act address, among other things, preservation of backup data (§ 2704);
delaying notice to a customer whose information has been accessed (§ 2705); cost
reimbursement for assembling data demanded under the Act (§ 2706); and exclusivity of
remedies that the Act provides to a person aggrieved by its violation (§ 2708).
16 An “administrative subpoena” is “a subpoena issued by an administrative agency to compel
an individual to provide information to the agency.” Administrative subpoena, Black’s Law
Dictionary (10th ed. 2014). To obtain such a subpoena, the government need not demonstrate
probable cause. See EEOC v. United Parcel Serv., Inc., 587 F.3d 136, 139‐40 (2d Cir. 2009).
15
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