New Paper by Orin Kerr
Once (and future?) conspirator Orin Kerr has a new paper on SSRN. The title is A User’s Guide to the Stored Communications Act – And a Legislator’s Guide to Amending It. Here is the abstract:
- Americans care deeply about their Internet privacy. But if they want to know how federal law protects the privacy of their stored Internet communications, they’ll quickly learn that it’s surprisingly difficult to figure out. The federal statute that protects the privacy of stored Internet communications is the Stored Communications Act (SCA), passed as part of the Electronic Communications Privacy Act of 1986 and codified at 18 U.S.C. section 2701-11. But courts, legislators, and even legal scholars have had a very hard time understanding the method behind the madness of the SCA. The statute is dense and confusing, and that confusion has made it difficult for legislators to legislate in the field, reporters to report about it, and scholars to write scholarship in this very important area.
This Article will present a user’s guide to the SCA. My main goal is to explain in relatively simple terms the structure and text of the Act so that legislators, courts, academics, and students can understand how it works – and in some cases, how it doesn’t work. I hope to explain the basic nuts and bolts of the statute and show that the statute works reasonably effectively, although certainly not perfectly. My second goal is to show how Congress needs to amend the SCA. I recommend three ways that Congress should rethink the SCA to better protect the privacy of stored Internet communications, clarify its protections, and update the statute for the present. Specifically, I argue that Congress should raise the threshold the government must satisfy to compel the contents of certain Internet communications; that it should simplify the statute dramatically by eliminating the confusing categories of “electronic communication service” and “remote computing service,” and eliminating redundant text; and that it should restructure the remedies scheme for violations of the statute.
Kerr is a terrific writer and an astute analyst. Highly recommended.