Can emails be subpoenaed from an electronic service provider, such as gmail, hotmail, or yahoo?

by | Dec 10, 2021 | Firm News | 0 comments

In divorce or civil litigation, sometimes a party tries to subpoena a third party’s emails from an electronic service provider, such as gmail, hotmail, or yahoo.  

A civil subpoena served on a service provider for the production of emails violates the Electronic Privacy Act, 18 U.S.C. § 2702 (aka Stored Communication Act or SCA).  This Act prohibits electronic communication service providers from divulging the “contents of a communication” maintained by a provider pursuant to a civil subpoena:

“Applying the clear and unambiguous language of § 2702 to this case, AOL, a corporation that provides electronic communications services to the public, may not divulge the content of the [third-party witnesses’] electronic communications to State Farm, because the statutory language of the Privacy Act does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas”.

In re Subpoena Duces Tecum to Aol, LLC, 550 F. Supp. 2d 606, 608-12 (E.D. Va. 2008).

          The court’s analysis was based upon the fact that 18 U.S.C. § 2702(a) prohibits electronic communication service companies (such as gmail, hotmail, and Yahoo) from  disclosing the contents of customers’ emails, unless one of the exceptions in subsection (b) or (c) apply.  These subsections do not authorize the disclosure of the contents of emails pursuant to a subpoena issued in a civil case.  

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