1. Whether federal statutes must contain
express privilege language before courts
may decide that Congress intended the
statute to create an evidentiary privilege
that abrogates the legislated subpoena
and discovery rules, and impedes judicial
truth-seeking, as the Ninth, Tenth, and
Eleventh Circuits have ruled, or whether
courts may read ambiguous silence in
statutory text to impliedly create such a
privilege, as the District of Columbia,
Third, and Fifth Circuits, and the lower
courts in this case, have ruled.

2. Whether the Stored Communications
Act (SCA), 18 U.S.C. § 2702(a), yields to
judicial process, as the Ninth Circuit
has presumed, or whether the Act impliedly creates a novel, unqualified evidentiary privilege for the Internet that
bars judicial subpoenas requested by
non-governmental litigants, as the Second Circuit, the Ohio State Supreme
Court, the District of Columbia Court of
Appeals, and the lower courts in this
case, have ruled.

Whether federal statutes must contain express privilege language before courts may decide that Congress intended the statute to create an evidentiary privilege that abrogates the legislated subpoena and discovery rules, and impedes judicial truth-seeking