By Melissa Medina | 63 Am. U. L. Rev. 267 (2013)

Google recently asserted that email “users have no ‘reasonable expectation’ of privacy.” Headlines like this fueled outrage when the advocacy group Consumer Watchdog posted Google’s motion to dismiss a class action lawsuit online. This statement has been called “a stunning admission,” but how surprising is it? In reality, Google’s statement reflects well-established law, which only fairly recently started to receive judicial criticism. Law enforcement agencies can often gain access to email information with little more than a subpoena. This ease of access may surprise many Americans who use email as their primary means of communication. The rapid and exponential growth of the Internet and technology over the past decade has made it easy to communicate with others around the world. However, these advantages have revealed a host of privacy issues. 

In the 1980s, manufacturers such as IBM and Apple began marketing more affordable computer systems, which allowed greater access to computer technology. This increased access spurred the creation of novel and now widely used methods of communication. Concerns that the law did not adequately protect the privacy of those communications prompted Congress to enact the Stored Communications Act (SCA) as part of the broader Electronic Communications Privacy Act of 1986 (EPCA). The SCA protects communications in three important ways: (1) it provides a private cause of action against anyone who intentionally “obtains, alters, or prevents authorized access” to certain stored communications; (2) it regulates when network service providers may voluntarily disclose customer communications and records; and (3) it outlines specific rules that govern when state actors may compel disclosure of stored communications from network service providers. 

Diverging judicial interpretations regarding the SCA’s applicability to modern technologies, such as Webmail, have created serious concerns as to the statute’s continued viability. Some courts interpret the SCA broadly by applying modern conceptions of new technologies, while others strictly follow the statutory language and history of the Act and assess new innovations within the confines of 1986 technologies. These differing interpretations have created uncertainty regarding the scope of the SCA. In Jennings v. Jennings, for example, the Supreme Court of South Carolina unanimously held that unauthorized access by any person to emails stored on Yahoo!’s server did not create a cause of action under the SCA. The Supreme Court of South Carolina’s issuance of three opinions in Jennings is indicative of the “headaches” courts encounter when applying the SCA to new technologies.

This Note argues that Congress needs to update the SCA to ensure adequate protection of electronic communications. Moreover, it advances that the ultimate outcome of Jennings was correct, but that the case’s different opinions have increased the uncertainty of the SCA’s application. To that extent, this Note proposes crucial legislative reforms and a simple and consistent approach for courts to follow and effectuate Congress’s intent. 

Click here to read this Note.

Share this post