Electronic Communication Services vs. Remote Computing Services (Part I)

In Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 875 (9th Cir. 2002), the Ninth Circuit wrote, “The leg­isla­tive his­tory of the ECPA sug­gests that Congress wanted to pro­tect elec­tronic com­mu­ni­ca­tions that are con­fig­ured to be pri­vate, such as email and pri­vate elec­tronic bul­letin boards.”

In gen­eral, the sta­tus of “elec­tronic com­mu­ni­ca­tion services“—such as providers of elec­tronic mail where the data stays on the server for only a lim­ited amount of time—is more defined that that of “remote com­put­ing ser­vices.” Although the advent of Google and other Web-​​based appli­ca­tion providers has made remote com­put­ing ser­vices into key play­ers today, they occu­pied a rel­a­tively minor role since the pas­sage of ECPA. In addi­tion, it appears that Congress did not envi­sion cus­tomers leav­ing sen­si­tive data in storage—either with elec­tronic com­mu­ni­ca­tion ser­vices or with remote com­put­ing services—for any length of time, and there­fore did not think to extend much legal pro­tec­tion to such stored communications.

One key dif­fer­ence between “remote com­put­ing ser­vices” and “elec­tronic com­mu­ni­ca­tion ser­vices” is the dif­fer­ence in pro­tec­tion for data stored with the provider. Only data either tem­porar­ily pass­ing through an elec­tronic com­mu­ni­ca­tion ser­vice or held as a backup by an elec­tronic com­mu­ni­ca­tion ser­vice can be in “elec­tronic stor­age” accord­ing to 18 U.S.C. § 2510(17): “(A) any tem­po­rary, inter­me­di­ate stor­age of a wire or elec­tronic com­mu­ni­ca­tion inci­den­tal to the elec­tronic trans­mis­sion thereof; and (B) any stor­age of such com­mu­ni­ca­tion by an elec­tronic com­mu­ni­ca­tion ser­vice for pur­poses of backup pro­tec­tion of such com­mu­ni­ca­tion.” See also Quon v Arch Wireless Operating Co., 309 F. Supp. 2d 1204 (C.D. Cal. 2004). Other key dif­fer­ences emerge when look­ing at 18 U.S.C. §§ 2701, 2702, and 2703 (see next posts).