The Stored Communications Act of 1986
Email was the talk-of-the-day when the Stored Communications Act was passed.
In the mid-1980s, Congress recognized that Americans (including businesses) had started to transmit information electronically. Although voice communications and postal mail were protected by Constitutional and legislative acts, nothing existed to protect communications transmitted electronically.
The concern for private information in the hands of electronic data transmitters was especially high in light of the Supreme Court's 1970s decisions on the "third-party doctrine."
The Third-Party Doctrine
In 1976, the Supreme Court (U.S. v. Miller) ruled that people do not have a "reasonable expectation of privacy" in information they "voluntarily" handed over to a third party. The ruling suggested the government could get access - without a warrant - to any information held by an internet or email service provider. Critics say the decision failed to recognize the increasing practicalities of consumer behavior (i.e. that we all rely on these services).
Limitations on private parties and the government
Ten years after the Supreme Court ruling, Congress stepped in to help. The Stored Communications Act limited the rights of private parties (for example, those companies that transmit our data) to expose information. It also set specific procedures that law enforcement officers would have to follow before getting access to the data.
Our infographic describes the 4th Amendment history leading up to the Stored Communications Act. It applies mostly to the government search aspects. The Department of Justice enforces the Act against private parties.
Two Supreme Court cases this term (2017-2018)
U.S. v. Microsoft will determine whether the Stored Communications Act allows the government to get access to information stored outside of the country. Microsoft was asked by the government to turn over a customer's email contents. The government got a full warrant (complying with the procedures of the SCA), but Microsoft refused to honor the request. Microsoft said the information is held in Ireland, and the Stored Communications Act only can compel access to information in the U.S.
Carpenter v. U.S. heads straight at the third-party doctrine. It challenges whether, when we use our mobile phones, we "voluntarily" give certain information to the cell phone service providers, like the doctrine presumes. In the case, Carpenter and Sanders were convicted of robberies in part through cell phone location data the government got from their mobile phone service providers. Because of the third-party doctrine, the 4th Amendment did not apply; the Stored Communications Act did. And the SCA did not require a warrant. Carpenter and Sanders argue we should have a "reasonable expectation of privacy" in cell phone location data held by our service providers.
- Article discussing the limitations of the Stored Communications Act in light of social media and new technologies (Duke Law and Technology Review).