Content Is Content Under the SCA
Single words and subject lines in electronic messages are “content” protected by the Stored Communications Act—Optiver Australia Pty, Ltd. v. Tibra Trading Pty. Ltd. & Ors., 2013 WL 256771 (N.D. Cal. Jan. 23, 2013)
Optiver sued its former employees in Australia for allegedly stealing its proprietary source code and using the code to start a competing company, Tibra. The Australian court allowed Tibra to conduct discovery of emails from Google after finding Tibra’s discovery responses inadequate. Optiver subpoenaed Google to produce documents relating to emails and Google Talk messages containing the terms “PGP” or “Optiver.” Tibra moved to quash the subpoena, arguing that the Optiver was improperly requesting the content of communications in violation of the Stored Communications Act (SCA).
Optiver countered with three arguments. First, “PGP” is the name of an encryption system, not content. Second, Optiver said that it wanted the documents not to discover the substance of the communications, but to locate communications that might be relevant to the foreign litigation. Third, if the email has been encrypted through PGP, Optiver cannot access the content without the proper encryption key and pass phrase, which it did not have. The court was unpersuaded. Content is content, no matter how insignificant, the court said. The words “PGP” or “Optiver” in the body of a message qualify as content that the SCA protects.
Optiver also argued that subject lines of email communications and Google Talk messages are not protected by the SCA and should be disclosed. Wrong again, the court said. The subject line is “nothing less than a pithy summary of the message’s content.” For support, the court pointed to the legislative history of the SCA.