Court Considers the “Persnickety, but Persistent Question” of What Qualifies as “Content” Under the Stored Communications Act

Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., No. C 12-80242 EJD (PSG), 2013 WL 256771 (N.D. Cal. Jan. 23, 2013)

In this case, the court granted in part Defendant’s Motion to Quash upon finding that Google’s production of metadata related to communications containing certain search terms and production of subject lines would violate the Stored Communications Act (“SCA”).

Before the court in this case was “the persnickety, but persistent, question of exactly what qualifies as ‘content,’ whose disclosure by service providers is prohibited under the Stored Communications Act.”  Specifically, the court considered Defendant’s motion to quash a subpoena served by the plaintiff upon Google, Inc. to obtain discovery for use in a foreign proceeding.  The subpoena sought information related to “a number of electronic communications sent or received by certain Gmail accounts allegedly used by employees of Tibra,” including metadata related to messages containing certain search terms and the subject lines of those messages and others which met certain criteria (e.g. sent within a certain time frame, received by certain people).

Addressing first Plaintiff’s request for production of metadata related to communications containing certain terms, the court reasoned that the SCA “prohibits any knowing disclosure by service providers of the content of electronic communications, no matter how insignificant,” that the proposed search would necessarily reveal that certain communications contained certain words (the search terms), and that such terms constitute “content, or information concerning the ‘substance, purport, or meaning’ of the communications” which, “[h]owever trivial,” are “exactly the sort of information the SCA sought to protect.”  Thus, the motion to quash this request was granted.

Turning to Plaintiff’s request for the production of subject lines of certain communications, the court concluded that it was “clear from the purpose and nature of the subject line that it is ‘content’ intended to fall under the protection of the SCA.”  In so concluding, the court reasoned that the subject line serves to “convey a substantive message about the body of the email” and further stated that “[i]n fact, a message’s subject line is nothing less than a pithy summary of the message’s content.”  Moreover, the court noted that “[m]aterials from the U.S. Department of Justice and the legislative history of the SCA underscore the notion that subject lines are content,” and provided examples.  Accordingly, those portions of the requests seeking the production of subject lines were also quashed.

Despite doubts about its usefulness, however, the court noted that the Plaintiff was entitled to receive certain non-content metadata.  Accordingly, Google was ordered to produce that information.