A Distinctionless Distinction: Why the RCS/ECS Distinction in the Stored Communications Act Does Not Work

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INTRODUCTION

On April 30, 2003, Tamara Greene was shot dead by a .40 caliber pistol, the same caliber used by the Detroit police. (1) Mayor Kwame Kilpatrick, celebrating his election as the youngest mayor of Detroit, is alleged to have had a party half a year earlier at the mayoral Manoogian Mansion. The party was supposedly attended by strippers--including Tamara Greene. (2) According to a member of the mayor's protection unit, the mayor's wife arrived at the party and physically assaulted Ms. Greene. (3) Less than a year later, Tamara Greene was dead.

The murder occurred during an ongoing investigation into Kilpatrick, his security force, and the Manoogian party. This led to widespread speculation that the Detroit police had been involved in the killing. (4) Police officers involved in investigating the murder and the other incidents were either transferred or fired, including a deputy police chief. (5) Tamara Greene's family brought a suit against the City for obstructing the investigation. As part of the suit, they requested thousands of city text messages surrounding the dates of the incident. (6)

Later, during a whistleblower suit about the improprieties of the mayor, Kilpatrick and his then chief of staff, Christine Beatty, testified that the two of them had not had ah extramarital affair together. (7) The mayor lost the suit and planned on appealing until the case was suddenly settled for $8.4 million. It was later discovered that the reversal and settlement came after the mayor's counsel found out that the plaintiffs were seeking to introduce thousands of text messages between the mayor and his chief of staff detailing the affair--evidence that the mayor had perjured himself. (8) These text messages led to Kilpatrick's resignation as mayor and subsequent criminal charges. (9)

As the cases resulting from Mayor Kilpatrick's actions show, text messages have become increasingly important in both civil and criminal suits. The disclosure of stored electronic communication, such as text messages, is governed by the Stored Communications Act (SCA). (10) The case allowing Tamara Greene's family to discover city text messages, Flagg v. City of Detroit, (11) has become an increasingly cited case interpreting the SCA. The Act creates a distinction between providers of Electronic Communication Services and Remote Computing Services. (12) A court must determine which category a provider falls into, as both have different discovery standards. As Flagg shows, this analysis is not an easy one; the court went as far as admitting that part of its analysis could be "mistaken." (13) This Note argues that the categories created by the Stored Communications Act do not adequately differentiate between different services, frequently overlap, and are unable to convincingly categorize contemporary services.

Part I describes the background, scope, categories, and disclosure standards of the Stored Communications Act. Particularly, Part I.C delves into the different results that occur based on a court's categorization of a service. Part II discusses some important cases that seek to interpret and apply the Act, often with contradictory results. Part III discusses ways the Act could be applied to contemporary services. Specifically, it seeks to show how many common services could be considered either an electronic communication service or a remote computing service depending on the result desired by the court. Finally, Part IV analyzes recent amendments proposed to the SCA in light of much criticism and suggests an alternative path that Congress should take.

I. THE STORED COMMUNICATIONS ACT

The Stored Communications Act, (14) a part of the Electronic Communications Privacy Act (ECPA), (15) was passed in 1986 to fill a perceived need to protect the privacy of electronic communication. (16) Due to rapid technological advances in computing and communication, individuals and corporations had a plethora of new options to process and store data and communicate with others. …