The Volokh Conspiracy

It depends on the context. There's a civil FOIA suit going on here too, and as the judge noted, "the messages can't be obtained in pretrial discovery of civil proceedings, such as the FOIA case." See O'Grady v. Superior Court, 139 Cal. App. 4th 1423 (2006). O'Grady is correct that a civil pretrial subpoena directed at the ISP is never enough to compel production. Rather, as the judge here apparently noted, the sender or recipient of the messages must be compelled by discovery procedures to produce them.

Why wouldn't the context matter? Maybe I'm missing something here. The article is discussing the newspapers' FOIA suit. As part of that FOIA suit, the newspapers seem to have served a civil subpoena, or perhaps requested the court to issue a subpoena, on Detroit's IM service provider, SkyTel. ("Wayne County Judge Robert Colombo, backtracking slightly, said the federal Stored Communications Act may prevent him from obtaining the messages from the city's provider, SkyTel, with just a subpoena.") Section 2702 bars SkyTel from producing the content of such messages, except pursuant to 2703 (or 2517 or 2511(2)(a), which clearly don't apply here). 2703 contains no exception for civil pretrial subpoenas. Ergo, as the O'Grady court held, the court can only compel production of those messages in such circumstances if the discovery is directed against the account holder, which appears to be what the Detroit judge is saying.

That's different from the question of how it might work on the criminal side, which is getting tied up in all this. As the article notes, "[t]he delay Friday [in the civil case] is fueling speculation about whether the same federal law could block the text messages from being used against Kilpatrick and Beatty in their criminal case. Their lawyers argue it should. But some experts disagree." Namely, you. Which I don't disagree with. But in the civil case, the newspapers can't get production of the emails from the ISP under an ordinary pretrial subpoena, no matter how old the messages are.

Bruce,

Ah, I understand your point -- yes, whether a civil subpoena will work to compel disclosure under 2703 apart from the criminal case is a different matter. That explains why apparently there was a debate over who the "subscriber" is in a case like that, as 2702 would permit the disclosure if the subscriber consents (at least to the extent you conclude the provider is acting as an RCS not an ECS -- interesting question).

In other news sure to provoke ECPA debates,

Lawyers representing the city [NYC] in lawsuits filed by hundreds of people arrested during the [2004 GOP] convention asked Mr. Hirsch to hand over voluminous records revealing the content of messages exchanged on his service and identifying people who sent and received messages. Mr. Hirsch says that some of the subpoenaed material no longer exists and that he believes he has the right to keep other information secret.

“There’s a principle at stake here,” he said recently by telephone. “I think I have a moral responsibility to the people who use my service to protect their privacy.”

The subpoena, which was issued Feb. 4, instructed Mr. Hirsch, who is completing his dissertation at M.I.T., to produce a wide range of material, including all text messages sent via TXTmob during the convention, the date and time of the messages, information about people who sent and received messages, and lists of people who used the service.

The mayor cannot hold office with multiple felony convictions (Michigan has a one felony--if it is non violent--forgiveness program).

He can, however, run for his mother's federal seat since felons are allowed to sit in congress. The smart money says he is kicking the can down the road until May 13, the filing deadline, when he will file for mom's seat. She then has until July to withdraw her name.

However, the pastors (and detroit black judges) are really coming out for him so strong he may not get convicted. The main push right now is to get the jury pool restricted to only black jurors instead of a mixed jury from all over the county. He may be able to remain as mayor and let mom ramp in some more years of service for her federal pension.

detroit has a long tradition of poor government, with KK just carrying on the long tradition of playing the race card when he gets into trouble. Coleman Young was a master-under his leadership, the City's population began its decline to where it is now, less than half of its peak population. the citizens kept electing him as he knew how to stick it to the white man, just like KK. I would like to say they aren't getting exactly what they deserve, but it would be a lie.

Coleman Young had his faults as a mayor, and they weren't all trivial. But the decline of Detroit as a city can't be laid at his feet. Rather, look at the decline of the U.S. auto industry (oh, and a Supreme Court case that said that school integration couldn't be accomplished by busing across county lines was a mjaor factor in promoting "white flight").

Coleman Young had his faults as a mayor, and they weren't all trivial...was a mjaor factor in promoting "white flight").

A major factor in white flight was Young's history of personally investigating black on white crime and declaring the victims racists who deserved the crime. Also a factor were his racist threats and policies.