Cyber Law: Software and Computer Networks: Volume 1

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding cyber law. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fourth Circuit Court of Appeals. * * * The Stored Communications Act is Title II of the Electronic Communications Privacy Act, codified at 18 U.S.C. §§ 2701 et seq. Passed by Congress in 1986, "the SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address." Quon v. Arch Wireless Operating Co., 529 F.3d 892, 900 (9th Cir. 2008), rev'd on other grounds sub nom. Ontario v. Quon, 560 U.S. 746 (2010). Historically, the Fourth Amendment has not protected personal information revealed to third parties. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976) ("The Fourth Amendment does not prohibit the obtaining of information revealed to a third party . . . even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed."). Providers of electronic communications act as third parties that store and process their users' private files, meaning the provider-maintained files fall outside Fourth Amendment protection. Because most electronic communication providers serve the public but are themselves private actors, they could potentially search files held under their control and disclose their users' information to the government without violating the Fourth Amendment. See Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1210-11 (2004). * * * To address this vulnerability, Congress crafted the SCA to protect information held by centralized communication providers. In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 147 (3d Cir. 2015). The SCA "creates a set of Fourth Amendment-like privacy protections by statute [by] regulating the relationship between government investigators and service providers in possession of users' private information." Kerr, supra, at 1212. It provides this enhanced privacy protection by limiting the government's ability to compel providers to disclose their users' information, 18 U.S.C. § 2703, and by limiting the providers' ability to disclose such information to the government, 18 U.S.C. § 2702. Walker v. Coffey, (3rd Cir. 2020).