UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO COMPEL YAHOO! AND GOOGLE TO COMPLY WITH THIRD-PARTY DOCUMENT SUBPOENAS
April 5, 2011
While taking no position on the merits of the underlying dispute, Yahoo! and Google have asserted that they are unable to comply with the subpoenas because the requested production is barred by the Stored Communications Act, 18 U.S.C. §§ 2701,et seq. (“SCA”). This court agrees, and, for the reasons detailed herein, the motion to compel is DENIED.
Yahoo! and Google are “electronic communication service” providers and are governed by the SCA. The SCA provides in relevant part that: a 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). The statute lists eight explicit exceptions to this prohibition, but does not include in that list responding to a civil subpoena. See 18 U.S.C. § 2702(b)(1)-(8). Rather, pursuant to § 2703, governmental entities may require the disclosure of the contents of customers’ electronic communications or subscriber information in the context of ongoing criminal investigations, but no similar authority is granted to civil litigants.
In short, “[p]rotecting privacy interests in personal information stored in computerized systems, while also protecting the Government’s legitimate law enforcement needs, the Privacy Act creates a zone of privacy to protect internet subscribers from having their personal information wrongfully used and publicly disclosed by ‘unauthorized private parties,’ S.REP. No. 99-541, at 3 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3557.” In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 610 (E.D. Va. 2008).
Faced with this statutory language, courts have repeatedly held that providers such as Yahoo! and Google may not produce emails in response to civil discovery subpoenas. See, e.g., id. at 609-611, and cases cited.
...plaintiff’s motion to compel... is DENIED.