One of the common areas of confusion in the law and online privacy is the communications Act ( "SCA"), 18 USC §§ 2701-2712 stored, and how it applies to government requests for data stored by online service providers such as Yahoo, Google, Amazon and private virtual business network ( "VPN"). The SCA imposes a number of requirements for data retention and storage of data on organizations and relevant enterprises. The SCA was supported by some universally applied to online service providers, and it is true that ACS applies to a significant number of major online companies. Contrary to the understanding in some quarters, the SCA does not apply to VPN-only services, despite geographic meet competency requirements, as well as some of the elements.
Before we delve into the legal analysis, we need to define some terms. The most important question to determine whether the SCA is applicable whether a body is considered an electronic communications service ( "ECS") or a remote computer service ( "RCS"). First, the overall SCA defines an ECS as "any service which provides to users thereof the ability to send or receive electronic communications or son." 18 USC § 2510 (15), see See S. Rep. No. 99-541 (1986), reprinted in 1986 USCCAN 3555, 3568;. Quon v Arch Wireless operating Co. , 529 F.3d 892, 00-03 ((September 08 Cir.) qualified text messaging service provider ECS) Case application of US , 509 F. Supp 2d 76, 79 (D. Mass 07) (cell phone service provider listed.. as ECS) Kaufman v Nest seekers , LLC, 06 WL 2807177, at * 5 (SDNY 26 September 06) (qualified electronic BBS as ECS) .; Freedman v America Online, Inc.. , 325 F. Supp. 2d 638, 643 n.4 (ED Va. 04) (qualified AOL ECS). email providers and instant messaging companies are the most likely parts that fall under ECS classification.
A service are not eligible as ECS provider if the service was not on the sending or receipt of the communication in question. See Sega Enterprises Ltd. c. Maphia , 948 F. Supp. 923, 930-31 (video game company accessing private email from a user on another company bulletin board service was not an electronic communication service provider) (N.D. Cal. 1996); Large State Photocopy, Corp. v. Tokai End. Servs. , Inc., 09 F. Supp. 137, 145 (S.D.N.Y. 1995) (finance company used facsimiles and computer systems, but did not provide to send or receive communications do not qualify as supplier ECS). Furthermore, the courts do not recognize online services such as Amazon.com uses Amazon ECS ECS as supplied by others, but not the use qualifies as ECS. Crowley v. CyberSource Corp. , 166 F. Supp. 2d 1263, 1270 (ND. Cal 01).
So technically a VPN provider is considered an electronic communications service for sending electronic communications, but probably does not qualify as a service provider of electronic communications for purposes of the Act under the law enacted Sega Enterprises Ltd. or Crowley. While a VPN offers an online service, the service does not include the specific ability to send or receive the communication in question likely. A VPN allows a user to send an e-mail or communication with the VPN on or off. For the purposes of qualification under the law, if the VPN is on or off is not relevant as to how or in what context an electronic communication is sent.
The second section is a VPN provider can qualify under the definition of IT services remotely available to the public. The law defines a remote computing service as "the provision of public storage or data processing services by means of an electronic communication system." In terms less legal survey, remote computer service is provided when a person can access an off-site computer for storage or processing of data for a customer
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a server or computer system that stores data on behalf of users for future for recovery is considered an RCS. See Steve Jackson Games, Inc. v. United States Secret Service , 816 F. Supp. 432, 442-43 (WD Tex. 1993) (BBS supplier called SCR), confirmed on other grounds, 36 F.3d 457 (5 Cir. 1994). a company or an organization operating a web site and associated servers are not necessarily an RCS, unless the company provides mainly for storage or processing services via Web services. For example, a cruise line company or the airline can compile and information and passenger routes store through its website, but these functions are accessories to provide the primary function of reservation services, not storage and processing of data; cruise liner company can not become a SCR. See In re Jetblue Airways Corp. Privacy Litigation , 379 F. Supp. 2d 299, 310 (E.D.N.Y., 05). A VPN would probably not be considered a remote computer service because a VPN does not on its own storage functionality in supply or data processing, nor primarily works to store and allow retrieval of data from the 'user.
as well, while a number of common Web services that consumers are likely to be familiar with to qualify under the SCA as ECS or RCS, VPNs do not seem fall within this range in the present state of the law. While it is understandable to be concerned by the claims that VPN qualify as an ECS or RCS for the SCA, and therefore are required to store or keep user activity logs; it seems that these claims do not seem likely to be based in the relevant case law.
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