The Fourth Amendment to the Constitution guarantees us the right to privacy—specifically, the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
However, with the advent of computers, digital communication, and electronic messaging, the question of privacy of these communications became a "gray area" for searches and interceptions since these communications did not constitute "papers and effects."
To fill this gap, Congress passed the Stored Communications Act (SCA) in 1986, now codified in federal law under Title 18, Chapter 121, Sections 2701-2712.
As a result, it's now a federal crime under 18 U.S.C. 2701 to access, obtain, or alter stored electronic communications without due authorization.
18 U.S.C. 2701 says, “Except as provided in subsection (c) of this section, whoever (1) intentionally accesses without authorization a facility through which an electronic communication service is provided, or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.”
Simply put, 18 U.S. Code 2701 prohibits intentionally accessing facilities where electronic communication service is provided without authorization to enter.
There are strict rules to ensure that people's communications can be kept primarily private in the United States. However, there are times when communications are intercepted or recorded, or information must be stored.
When communication records are made and produced, compliance with the law is essential because sensitive privacy issues are raised. Depending on the circumstances of the offense, if you're convicted of this crime, you could face between one and ten years in prison. Let's review this federal law further below.
18 U.S.C. 2701 Explained
Specifically, 18 U.S.C. 2701 protects the privacy of electronic communications that are being stored in a "facility through which an electronic communication service is provided," such as an email service, voice mail provider, etc., not necessarily on someone's personal computer or phone, which would still be protected under home privacy guarantees.
These providers generally store electronic communications on their servers until such time as the recipient accesses them, and they often continue to store them after the message(s) have been delivered.
The law effectively targets hackers and corporate spies who might attempt to intercept these communications for their purposes.
18 U.S.C. 2701 makes it a crime to access these facilities without proper authorization and do any of the following with private electronic communications:
- Obtain (i.e., copy) them;
- Alter them; or
- Block user access to them.
For purposes of this law, examples of electronic communications may include, but are not limited to:
- Text messages;
- Voice mails;
- Internet messages (IMs), e.g., chat;
- File transfers (FTP) or email attachments.
This law does not protect stored electronic communications intended for public viewing and interaction, such as messages on electronic bulletin boards.
What Are the Exceptions to the Law?
18 U.S.C. 2701 lists several exceptions in which accessing stored electronic communications is not prosecutable as a crime. These include:
- When the service provider explicitly authorizes the conduct, such as accessing electronic bulletin boards;
- When an authorized user of the service authorizes access to their stored communications;
- When a legal warrant or subpoena is issued requiring the release of the communications or requiring the service provider to save a copy of the communications, either for court purposes or as part of an ongoing investigation
What Are Some Examples?
EXAMPLE 1: John is a hacker hired by a business to do commercial espionage on one of their competitors. John hacks into the email servers of one of their competitors and accesses their emails looking for clues regarding trade secrets or proprietary marketing strategies. John can be charged under 18 U.S.C. 2701. So can the company that hired him.
EXAMPLE 2: Gina is a federal investigator who receives a warrant to intercept electronic communications for a group of suspected terrorists. Gina cannot be prosecuted under 18 U.S.C. 2701 because she has received lawful government authorization to access these otherwise-private communications.
What Are the Related Federal Laws?
18 U.S. Code Chapter 121 stored wire and electronic communications and transactional record access has several federal statutes that are related to 18 U.S.C. 2701 unlawful access to stored communications, such as the following:
- 18 U.S.C. 2702 - Voluntary disclosure of customer communications;
- 18 U.S.C. 2703 - Required disclosure of customer communications;
- 18 U.S.C. 2704 - Backup preservation;
- 18 U.S.C. 2705 - Delayed notice;
- 18 U.S.C. 2706 - Cost reimbursement;
- 18 U.S.C. 2707 - Civil action;
- 18 U.S.C. 2708 - Exclusivity of remedies;
- 18 U.S.C. 2709 - Counterintelligence access to records;
- 18 U.S.C. 2710 - Wrongful disclosure of video tape rental;
- 18 U.S.C. 2711 - Definitions for chapter;
- 18 U.S.C. 2712 - Civil actions against the United States;
- 18 U.S.C. 2713 - Required disclosure of communications records.
What Are the Penalties for 18 U.S.C. 2701?
If you are convicted under 18 U.S.C. 2701, the penalty will depend on two factors: the context of the offense and prior convictions under this law.
For general non-commercial violations:
- Up to 1 year in prison for a first offense; or
- Up to 5 years in prison for subsequent offenses.
For violations committed for "commercial advantage, malicious destruction or damage, or private commercial gain" or in furtherance of other state or federal crimes:
- Up to 5 years in prison for a first offense; or
- Up to 10 years in prison for subsequent offenses.
Applicable fines may also apply to any conviction under 18 U.S.C. 2701.
What Are the Defenses for 18 U.S.C. 2701?
The most common defense against unlawful access to stored communications charges is that the accused individual was authorized by the service provider or an authorized user of the services to access the communications.
If a legal warrant or subpoena was issued, this could also be used as a valid defense. Other possible strategies that a federal criminal defense lawyer can use are discussed below.
Perhaps we can argue there was a lack of intent. For example, maybe you hacked into an email server just to see if you could and had no malicious intent in accessing the communications.
Perhaps we can argue that you were under duress. For example, someone coerced you to break into the server under threat of harm to you or your family.
If you have been charged with a federal crime, contact our law firm by phone or use the contact form. We need first to review the case details.
We provide legal representation across the United States for federal criminal matters. Eisner Gorin LLP is based in Los Angeles, California.