Insights

Can Someone Subpoena My Gmail Account, Facebook Postings and Text Messages?

William M Fischbach,  |  April 24, 2018

E-mail and text messages are undoubtedly the preferred method of communication in today’s business and social environment. Thus, in litigation, clients often ask the following subpoena questions:

  • Can someone subpoena my e-mail records?
  • Can someone subpoena my cell phone text messages?
  • Can someone subpoena private Facebook messages or postings?
  • If I delete messages, can someone subpoena Gmail, Facebook or my cell phone carrier to get older messages?

The answer to these questions is typically “no,” but it depends on how the content is stored and how it is sought.

Generally speaking, civil discovery often focuses on the retention and acquisition of electronic communications. For example, one party typically propounds a discovery request to its opposing party requesting the production of all relevant e-mails within a certain time frame, and the other party responds. Assuming the discovery request is relevant and proportional to the needs of the case, it is a valid means of obtaining evidence. The concern that often arises is whether the party responding to the request has provided every relevant electronic communication in its possession. The old Russian proverb doveryai no proveryai—“trust but verify”—would seem to apply.

When Someone Uses a Private Email Server

So how to verify? When a party sends and receives e-mail in Microsoft Outlook or a similar application, she will likely maintain and have access to her own private e-mail server. In that instance, someone can typically image the data on the e-mail server to obtain relevant e-mails. A third party vendor can be retained to identify and disclose only those e-mails relevant to the dispute and to remove any privileged communications, such as e-mails to or from one’s attorney or spouse.

When Someone Uses a Web-Based Email Provider

But suppose your opposing party uses only web-based e-mail such as Yahoo or Gmail. You can ask that the party produce all the relevant e-mails, but how do you know the party didn’t hold something back? Can you serve a subpoena on Yahoo or Gmail to obtain the e-mail communications?

The answer is, “Probably not.” The reason is that web-based e-mail providers can invoke the Stored Communications Act (SCA), 18 U.S.C. § 2702. The SCA generally prohibits providers of electronic communication services from divulging “the contents of a communication” maintained by the provider. Although there are some exceptions to the rule—such as a subpoena issued by a law enforcement agency—every court that has addressed the issue has held that web-based e-mail providers cannot disclose electronic communications in response to civil subpoenas. This prohibition extends not only to e-mails, but to text messages maintained by mobile phone carriers such as Verizon and AT&T Wireless. Some courts have also found that the SCA prohibits the disclosure of private Facebook posts, i.e., posts visible only to your Facebook “friends,” but does not prohibit the disclosure of Facebook posts that are viewable by all members of the public.

What the SCA Protects and Permits

Note that the SCA prohibits only the disclosure of “the contents of a communication.” It does not prohibit the disclosure of other information such as the identity of a particular account holder, IP address information, the date, time, and originating phone number of a text message, and other non-content information. This non-content information can be particularly useful in cases involving “hacking” or other unauthorized access to an electronic communication medium.

Note that if such information has been deleted by the user, the host will not maintain it indefinitely. How long the host maintains the information depends on the company involved. For instance, Verizon Wireless typically only stores call and text message “detail records” for one-year, whereas Sprint typically stores this information for 18-24 months. T-Mobile stores this information for two years for a pre-paid user and five-years for a post-paid user, while AT&T “varies” on its retention. These “detail records” only include the number sent to, and the date and time of the call or message. For text message content, Verizon Wireless typically stores this information for three to five days, whereas T-Mobile and AT&T do not retain message content.

Finally, the SCA should not be viewed as a license to delete e-mails or other electronic communications that may be relevant to a brewing dispute. Litigants and potential litigants are obligated to preserve such information even in the absence of a formal request. This includes ensuring that relevant data is not overwritten in the normal course of business. Before disposing of e-mails or other electronic communications that may be relevant to a current or future dispute, you should always consult with counsel first.

About the Author

William M. Fischbach is an attorney and shareholder with Tiffany & Bosco in Phoenix, Arizona. He is a highly experienced trial lawyer who focuses his practice in commercial and civil litigation.

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