Stored Communications Act - Constitutionality of Compelled Government Disclosure

Constitutionality of Compelled Government Disclosure

With respect to the government’s ability to compel disclosure, the most significant distinction made by the SCA is between communications held in electronic communications services, which require a search warrant and probable cause, and those in remote computing services, which require only a subpoena or court order, with prior notice. This lower level of protection is essentially the same as would be provided by the Fourth Amendment—or potentially less, since notice can be delayed indefinitely in 90-day increments. Orin Kerr argues that, "the SCA was passed to bolster the weak Fourth Amendment privacy protections that applied to the Internet. Incorporating those weak Fourth Amendment principles into statutory law makes little sense." In Warshak v U.S. (2007) this point of view found fleeting support from a panel of the Sixth Circuit, which ruled that a reasonable expectation of privacy extends to emails that would otherwise fall under the SCA’s lower level of protection: "Where the third party is not expected to access the e-mails in the normal course of business, however, the party maintains a reasonable expectation of privacy, and subpoenaing the entity with mere custody over the documents is insufficient to trump the Fourth Amendment warrant requirement." Subsequently, the Sixth Circuit en banc vacated the panel's ruling and remanded for dismissal of the constitutional claim, reasoning that, because the Court had "no idea whether the government will conduct an ex parte search of Warshak’s e-mail account in the future and plenty of reason to doubt that it will," the matter was not ripe for adjudication. Zerwillinger and Sommer observed that this decision erected a barrier to "prospective" challenges by individuals with reason to believe they will be targets of surveillance. While Warshak's civil case ended without a resolution to this issue, his criminal case provided another opportunity. In United States v. Warshak (2010) the Sixth Circuit found that email users have a Fourth Amendment-protected reasonable expectation of privacy in the contents of their email accounts and that "to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional."

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