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| Acronyms (colloquial) | SCA |
|---|---|
| Enacted by | the 99th United States Congress |
| Effective | October 21, 1986 |
| Citations | |
| Public law | Pub. L. 99–508 |
| Statutes at Large | 100 Stat. 1848, 1860 |
| Codification | |
| Titles amended | 18 |
| U.S.C. sections created | §§ 2701–2712 |
| Legislative history | |
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| Major amendments | |
The Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701–2713)[1] is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party Internet service providers (ISPs). It was enacted as Title II of the Electronic Communications Privacy Act of 1986 (ECPA).
The Fourth Amendment to the U.S. Constitution protects the people's right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." When applied to information stored online, however, the Fourth Amendment's protections are potentially far weaker. In part, this is because the Fourth Amendment defines the "right to be secure" in spatial terms that do not directly apply to the "reasonable expectation of privacy" in an online context. The Fourth Amendment has been stressed as a right that protects people and not places, which leaves the interpretation of the amendment's language broad in scope. In addition, society has not reached clear consensus over expectations of privacy in terms of more modern (and developing, future) forms of recorded and/or transmitted information.
Furthermore, users generally entrust the security of online information to a third party, an ISP. In many cases, Fourth Amendment doctrine has held that in doing so, users relinquish any expectation of privacy. The Third-Party Doctrine holds "that knowingly revealing information to a third party relinquishes Fourth Amendment protection in that information."[2] While a search warrant and probable cause are required to search one's home, under the third party doctrine only the exception of consent (a much lower hurdle than probable cause) are needed to subject an ISP to disclose the contents of an email or of files stored on a server.[3]
As per request by the House Committee on the Judiciary, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, as well as the Senate Committee on Governmental Affairs asking the Office of Technology Assessment (OTA) to create a report about protections surrounding electronic communications, it was found that individuals were at risk. This risk identified current protections for electronic mail as being "weak, ambiguous, or nonexistent."[4] The report concluded that "[t]he existing statutory framework and judicial interpretations thereof do not adequately cover new and emerging electronic surveillance technologies."[5] Congress acknowledged that traditional Fourth Amendment protections were lacking. As a result, the Electronic Communications Privacy Act was enacted in 1986 as an update to the Federal Wiretap Act of 1968, which addressed protections on telephone (land) line privacies. The provisions are distributed into three titles, with Title II being the Stored Communications Act.
The SCA creates Fourth Amendment-like privacy protection for email and other digital communications stored on the Internet. It limits the government's ability to compel an ISP to turn over content information and noncontent information (such as logs and "envelope" information from email). It also limits the ability of commercial ISPs to reveal content information to nongovernment entities.
- ^ "18 U.S. Code Chapter 121 - STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS". LII / Legal Information Institute. pp. 2701–2712. Retrieved 2022-02-01.
- ^ Kerr, Orin S., "The Case for the Third-Party Doctrine", Michigan L. Rev., Vol. 107, 2009; GWU Legal Studies Research Paper No. 421.
- ^ Kerr, Orin S., "A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It", George Washington L. Rev. (2004). Available at doi:10.2139/ssrn.421860.
- ^ Orin S. Kerr, "A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It," 72 GEO. WASH. L. REV. 1208, 1211–12 (2004). 6 For further discussion of statutory protections afforded to private messages and wall posts, see infra Part II.B.1–2.
- ^ For a defense of this doctrine, see Orin S. Kerr, "The Case for the Third-Party Doctrine," 107 MICH. L. REv. 561 (2009). OFFICE OF TECHNOLOGY ASSESSMENT, OTA-CIT-293, FEDERAL GOVERNMENT INFORMATION TECHNOLOGY: ELECTRONIC SURVEILLANCE AND CIVIL LIBERTIES (1985)