Apple has no right to subopena Nfox-unlawful under the Federal Stored Communications Act (which Apple has overlooked) :
III. The Writ Must Issue Because Apples Subpoenas To Nfox And Karl Kraft Are Unlawful Under The Federal Stored Communications Act
Apple has no right to subpoena emails stored on Nfoxs servers in the first place. The federal Stored Communications Act, 18 U.S.C. § 2701 et seq., (the SCA) forbids an electronic communication service (ECS) provider like Nfox or Kraft from disclosing the contents of a customers emails and other electronic communications to private parties. 2 By force
2 Subdivision (b) of Section 2702 sets forth seven limited exceptions to this general rule, none of which apply to Apples proposed discovery:
(b) Exceptions for disclosure of communications. A provider described in subsection (a) may divulge the contents of a communication
(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;
(2) as otherwise authorized in section 2517, 2511 (2)(a), or 2703 of this title [these sections authorize law enforcement and other governmental access under certain conditions];
(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;
(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;
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of the Supremacy Clause of the federal Constitution, the SCA preempts any state law to the contrary, including discovery statutes. Under the SCA, Apples subpoenas directing Nfox and Kraft to produce Petitioner OGradys emails are unlawful.
The SCA provides that any person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service. 18 U.S.C. § 2702(a)(1) (emphasis added). Under the SCA, contents, when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication. 18 U.S.C. § 2510(8). The SCA protects users whose electronic communications are in electronic storage with an ISP or other electronic communications facility. Theofel v. Farey-Jones, 341 F.3d 978, 982 (9th Cir. 2003).
(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(6) to a law enforcement agency
(A) if the contents
(i) were inadvertently obtained by the service provider; and
(ii) appear to pertain to the commission of a crime; or
(B) if required by section 227 of the Crime Control Act of 1990; or
(7) to a Federal, State, or local governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.
18 U.S.C. § 2702, subd. (b). None of 18 U.S.C. § 2702s limited exceptions authorize any disclosure by Nfox or Kraft of the contents of OGradys stored communications to non-governmental entities like Apple absent OGradys consent, whether in response to a discovery subpoena or otherwise.
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Congress passed the SCA to prohibit a provider of an electronic communication service from knowingly divulging the contents of any communication while in electronic storage by that service to any person other then the addressee or intended recipient. S.Rep. No. 99-541, 97th Cong. 2nd Sess. 37, reprinted in 1986 U.S.C.C.A.N. 3555, 3591. As the Ninth Circuit has explained, the SCA reflects Congresss judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility. Theofel, 341 F.3d at 982.
Accordingly, the SCA flatly prohibits Nfox and Kraft, as person
or entit[ies] providing an electronic communication service to the public, from disclosing the contents of OGradys communications. If Apple wants OGradys emails, its only legal option is to subpoena him directly; the SCA offers no exception allowing disclosure by a communication service provider in response to civil subpoenas from private litigants. 18 U.S.C. § 2702 (a)(1); see also The U.S. Internet Service Provider Association, Electronic Evidence ComplianceA Guide for Internet Service Providers, 18 BERKELEY TECH. L. J. 945, 965 (2003) (no Stored Communications Act provision permits disclosure pursuant to a civil discovery order unless the order is obtained by a government entity
. [T]he federal prohibition against divulging email contents remains stark, and there is no obvious exception for a civil discovery order on behalf of a private party). 3 Under the SCAs plain language, Apple cannot legally discover the contents of electronic communications from the service
3 While the SCAs Section 2707(e)(1) provides a safe harbor for an ECS providers good faith reliance on a court order, this is neither an independent source of authorization for disclosure nor a license for an ECS to respond to a subpoena despite knowing that the statute prohibits disclosure.
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provider that stores them. Apple can only subpoena the account holder who uses the service, Petitioner OGrady.4
The trial court simply ignored the SCA and its prohibitions, failing to even mention the statute in its order despite briefing by both sides. (See Movants Opening Br. at 15:16-20 (Ex. 16, 124:16-20); Pl.s Oppn Br. at 10, n.3 (Ex. 24, 372:26-28); and Movants Reply Br. at 8:19 to 9:15 (Ex. 30, 425:19 to 426:15.)) Despite the trial courts unjustified disregard for it, the SCA absolutely prohibits Apple from seeking discovery from Nfox, Kraft, or any other ECS provider used by Petitioners, and requires issuance of a protective order prohibiting such discovery.
Source:http://www.eff.org/Censorship/Apple_v_Does/20050322_writ_petition.pdf
