No Public Right of Access to 2703(d) Orders in the Stored Communications Act

So holds the Fourth Circuit in an opinion by Judge Gregory. I would add just one minor tweak to the court’s analysis. Although the Stored Communications Act was enacted in 1986, the provision introducing intermediate-scrutiny 2703(d) orders was not enacted until 1994. See H.R.Rep. No. 103–827, at 31–32 (1994), reprinted in 1994 U.S.C.A.A.N. 3489, 3511–12. The original 1986 Act allowed the government to obtain all non-content information with a subpoena, and it did not add the greater privacy protection of a 2703(d) order until eight years later. See id. I only point that out because answering whether there is a long tradition of public access to 2703(d) orders naturally leads the court to find a starting date for 2703(d) orders; the appropriate date presumably should be ’94 instead of ’86.

UPDATE: On second thought, I suppose the proper date may be 1986. Reviewing the original 1986 Act, I see that it did indeed include a provision for the 2703(d) authority: The standard for the order was raised in 1994, but the order did exist in 1986. Sorry for the confusion.

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