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EdwardBontkowskiFirstPaper 5 - 06 May 2010 - Main.EdwardBontkowski
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| | | How the Stored Communication Act Works
In 1986, the Electronic Communications Privacy Act of 1986 (“ECPA”) was passed into law, touted by many at the time as providing significant protections for the privacy of online communication. One of the main components of the ECPA is the Stored Communications Act (“SCA”). The SCA addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers. | |
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< | The SCA categorizes two types of online services—“electronic communication services” (“ECS”) and “remote computing services” (“RCS”). The difference between these two categories is somewhat subtle, but very determinative for a communication’s treatment under the statute (and also important in arguing why this statute is antiquated). Under the SCA a ECS is “…any service which provides to users thereof the ability to send or receive wire or electronic communications….” A RCS is defined as “…the provision to the public of computer storage or processing services by means of an electronic communications system. The SCA is a hyper-technical statute, but essentially it says that to compel disclosure from an ECS of an email that has been in storage for 180 days or less from, the government must obtain a warrant (and thus must have probable cause). If the email has been in storage for more than 180 days, or the provider is a RCS, the government may obtain a search warrant, or, importantly, may get a subpoena or a “specific and articulable facts” court order to compel disclosure as long as notice is given to the person whose communications are being sought. Obviously, the subpoena and “specific and articulable facts” order require much less process than a search warrant and the notice requirement can be loopholed somewhat, and thus it is this area where privacy concerns are at their highest. | >
> | The SCA categorizes two types of online services—“electronic communication services” (“ECS”) and “remote computing services” (“RCS”). The difference between these two categories is somewhat subtle, but very determinative for a communication’s treatment under the statute (and also important in arguing why this statute is antiquated). Under the SCA an ECS is “…any service which provides to users thereof the ability to send or receive wire or electronic communications….” A RCS is defined as “…the provision to the public of computer storage or processing services by means of an electronic communications system." The SCA is a hyper-technical statute, but essentially it says that to compel disclosure from an ECS of an email that has been in storage for 180 days or less, the government must obtain a warrant (and thus must have probable cause). If the email has been in storage for more than 180 days, or the provider is a RCS, the government may obtain a search warrant, or, importantly, may get a subpoena or a “specific and articulable facts” court order to compel disclosure as long as notice is given to the person whose communications are being sought. Obviously, the subpoena and “specific and articulable facts” order require much less process than a search warrant and the notice requirement can be loopholed somewhat, and thus it is this area where privacy concerns are at their highest. | | | The Stored Communications Act: A 24-year-old Antique | | | This is an area of particular interest to me. I share your general conclusion that the Fourth Amendment should not be the dead letter online that it is presently, and that if we could revive it that would be a preferable approach to new legislation. I wonder if you came across any particularly useful readings on the topic in your prep for this essay? I've encountered some (including for this course) but if you have a source in particular that you'd recommend I would be interested to hear it. Thanks.
-- BrianS - 04 May 2010 | |
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Brian,
I found Orin Kerr to be one of the foremost scholars on the SCA (and a lot of other technology law related things). He has several articles in various journals relating to the SCA. He also blogs on the Volokh Conspiracy website about this topic as well. His writing is quite excellent in my opinion.
-- EdwardBontkowski - 06 May 2010 | | |
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