Communication through email is a reality of the modern world. Another reality is that even the most careful among us have pangs of regret shortly after hitting the send button, realizing that an email did not accurately convey our intended thoughts. And every day, lawyers representing clients in criminal investigations blanch when they review their clients’ emails: a client’s pangs of regret become the lawyer’s challenge to explain the client’s intended meaning to a cynical prosecutor or, even worse, a lay jury.
While emails are often produced pursuant to subpoenas addressed to the sender or recipient (or the sender’s or recipient’s employer), the Stored Communications Act, part of the Electronic Communications Privacy Act of 1986, enables the government to obtain emails and electronic data stored by third parties like Google, Yahoo! and Facebook.1 Of course, the worldand especially the way in which we communicate electronicallyhas changed dramatically over the past 27 years, and Congress is presently drafting legislation aimed at bringing the rules regulating the government’s access to electronic communications into the 21st century.
