The Stored Communications Act

Seth Rosenbloom, Columbia Law School, has published “Crying Wolf in the Digital Age: Voluntary Disclosure Under the Stored Communications Act.” Here is the abstract.

The Stored Communications Act (SCA) restricts the ability of electronic service providers to disclose customer information and the government’s ability to compel disclosures. Providers and governmental entities are both subject to civil liability for violations of the SCA. Despite the importance of the distinction, the SCA fails to clearly identify “compelled” and “voluntary” disclosures.

An overly limited conception of “compelled” disclosure would allow the government to circumvent the SCA’s procedural requirements. This could result in inappropriate and unaccountable disclosures. Additionally, the SCA authorizes voluntary disclosures where a provider has a good faith belief “that an emergency involving danger of death or serious injury to any person requires disclosure without delay.” Coupled with a limited conception of “compelled” disclosure, the emergency exception threatens to swallow any meaningful restrictions on the government’s ability to obtain information.

This Note argues that the SCA’s voluntary/compelled distinction should be strengthened and the emergency provision should be revised. In non-emergency situations, the government should not be allowed to solicit disclosures outside of the procedures specified in the SCA. On the other hand, law enforcement officers should be able to quickly compel disclosures if they certify that an emergency exists.

Section I explains the SCA’s critical role in protecting privacy. Section II examines the voluntary/compelled distinction and suggests that courts should incorporate existing Fourth Amendment law. Section III analyzes the SCA’s “emergency exception” and argues that it should be amended such that the focus is on whether the government has acted reasonably, rather than on a provider’s subjective belief.

Download the entire paper from SSRN here.