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Today’s Stored Communications Act

The familiar tune of privacy protection of online information seems to play in the background of our lives at a near constant in this day in age. And although the conversation is becoming all too familiar, the scope and intricacies of online privacy protections remain unsettled. The Fourth Amendment provides, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures [.]” Although traditionally the language of the Fourth Amendment reflects a spatial, physical trespass interpretation, Fourth Amendment jurisprudence today involves a Katzian analysis of both objective and subjective reasonableness. The prominent sentiment today seems to be that since we (online users) voluntarily divulge our online information to our internet service providers, that our expectation for privacy is unreasonable. (i.e. The Third Party Doctrine) It is certainly arguable that as we move forward in this technological age, the widespread involvement of citizens of all classes and careers on online forums will most likely result in the recognition of online information as information worthy of protection under Katz and the reasonableness analysis.

In this period of transition between yesterday and tomorrow, we will take a look at the status of online information protection today under the Stored Communications Act. Title II of the Electronic Communications Privacy Act is entitled: the Stored Communications Act. The SCA “beefed up” protections between certain types of online communication services, namely electronic communication services and remote computing services. Section 2702 defines ECS as, “[A]ny service which provides users thereof the ability to send or receive wire or electronic communications.” And a RCS as, [T]he provision to the public of computer storage or processing services by means of an electronic communications system.” SCA § 2702 limited the circumstances in which an ISP may divulge user information; most notably § 2702 forbids ISP’s from the disclosure of user’s contents. However, ISPs may share non-substantive information, such as the name or email address of a user with any non-governmental entity.

SCA § 2703 defines the limited circumstances that allow the government to compel ISP subscriber information disclosure. On an electronic communication service the government must obtain a search warrant (and the attached probable cause) for unopened emails that have been stored for at least 180 days. Remote computing services enjoy lesser protections where the government may compel upon either a search warrant, or a subpoena in conjunction with “prior notice” to the party.

1986 was not a year of booming social media platforms, thus the SCA is fairly outdated. However, there have been instances in which courts have attempted to fit the SCA scheme to the more modern social media generation. Consider the 2010 decision out of the Central District of California, Crispin v. Christian Audigier. (http://www.huntonfiles.com/files/webupload/PrivacyLaw_Crispin_v_Christian_Audigier.pdf) Crispin, an artist, claimed to be in a contractual agreement with the defendant, a clothing company. According to Crispin, the agreement allowed the defendant to use the plaintiff’s artwork on street apparel in exchange for a particular sum of money, as well as, recognition (the artist’s signature) included on the clothing. When the defendants broke this alleged agreement, Crispin brought the cause of action. In response, the defendants served subpoenas to four third-party businesses and websites including: Black Market Art Company, Media Temple, Inc., MySpace, and Facebook. Defendants sought general subscriber information, as well as communications between the plaintiff and a particular tattoo artist and all communications having to do with, or referring to the defendant claiming that these communications were critical to understanding the nature of the agreement.

The plaintiff fired back with a motion to quash invoking rights protected under the SCA pertaining to allowable disclosures of ISPs. The trial court judge concluded that the SCA was not applicable to the third-party websites listed because the SCA only reaches electronic communication service providers. In addition, the judge found that the SCA only applied to disclosures of information held in electronic storage, and that the materials involved in the present case were not in electronic storage.

However, on a motion to reconsider filed by the plaintiff, the District Court of Central California found that the trial court judge read the reach and definition of the SCA too narrowly. Media Temple, Inc., Facebook, and MySpace all provide private messaging services, and thus the court found that case law established these services as ECS worthy of protection under the SCA.

Although society (or maybe the courts) are not ready to readily accept online communications as private communications worthy of Fourth Amendment protection, the Crispin court’s application of the 1986 SCA to communications that were not even in existence at the time of the legislation’s adoption is a reflection of the direction online privacy protections are moving.

-Olivia Euler