CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, August 30, 2013

Borchert, Pinguelo & Thaw on the Stored Communications Act and Social Media

Christopher J. Borchert Fernando M. Pinguelo and David Thaw (University of Connecticut - School of Law , SCARINCI HOLLENBECK, LLC and University of Connecticut School of Law) have posted Reasonable Expectations of Privacy Settings: Contemplating the Stored Communications Act Through the Prism of Social Media on SSRN. Here is the abstract:

The Stored Communications Act (SCA) provides additional protections for individuals' private communications content held in electronic storage by third parties. As technology has advanced since the SCA's passage, however, courts have struggled to understand the breadth of its application — often times inconsistently affording protection to similar private content sent using different technologies.

Modern information and communications technologies substantially enhance the way individuals communicate with one another. Provision of these services, however, necessarily requires that third parties store and have access to individuals' communications content — regardless of whether that content is private or public. In the 1980s, Congress recognized this growing trend, and out of direct concern for the implications of the Third-Party Records Doctrine, which generally eliminates Fourth Amendment protections for information entrusted to third parties, passed the SCA to provide individuals with greater protections.

Individuals must be able to understand the privacy protections their private communications will enjoy, and cannot do so if those protections depend on a court's post-hoc analysis of a given technology. Rather, individuals should be able to rely on expectations established as a function of their expressed privacy preferences. This Article argues that Congress should revisit the SCA and adopt a single, technology-neutral standard of protection for private communications content held by third-party service providers. Furthermore, it suggests that Congress specifically intended to limit the scope of the Third-Party Records Doctrine by creating greater protections via the SCA, and thus courts interpreting existing law should afford protection to new technologies such as social media communications consistent with that intent based on individuals' expressed privacy preferences.

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