Communications content and non-content/envelope information for emails

By: Show Wang

Article link: http://www.ediscoverylaw.com/2013/02/articles/case-summaries/court-considers-the-persnickety-but-persistent-question-of-what-qualifies-as-content-under-the-stored-communications-act/

The article contains a link to a court opinion, which can be seen here: http://www.ediscoverylaw.com/uploads/file/Westlaw_Document_Optiver.doc

 

A recent case expands on the distinction between communications content and non-content/envelope information for emails. Although so far most of the cases we have dealt with in class have involved the government in criminal cases, the SCA applies to non-government persons and entities. The SCA applies here even though this case involves a company seeking the communications content of another company’s emails. The email provider (Google in this case) would only be allowed to share non-content information such as log data and email addresses. At the end of the opinion, the court correctly classifies email subject lines as content before mentioning what non-content metadata Optiver is entitled to from Google. The list of non-content included recipient, sender, date sent, date received, date read, and date deleted of emails, email attachments, or Google Talk messages. ┬áIt is troubling that anyone could have access to this data, and it continues the debate over whether some of this information is revealing of people’s inner lives. Furthermore, if all of this falls under non-content, then it also expands what would fall under non-content surveillance by the government for the Pen Register Act.