Amend the ECPA: Fourth Amendment Protection Erodes as E-Mails Get Dusty

Abstract

This Note argues that Congress should amend section 2703(a) of the Electronic Communications Privacy Act ("ECPA") to bring it in line with modern technology and practices. The Congress enacted the ECPA in 1986 to draw clear lines as to where Fourth Amendment protection extends with emerging technologies. In 1986, e-mail technology was still very new. Most e-mail users dialed-up to their e-mail servers using a modem and downloaded their communications to a home computer, with the server acting only as a medium for temporary storage. Using this rationale, the ECPA draws a distinction between e-mails in electronic storage on third-party servers for 180 days or less and those in electronic storage longer than 180 days. E-mails in storage for 180 days or less are afforded full Fourth Amendment protection at a probable cause standard while those in storage for longer than 180 days may be compelled for disclosure at a mere subpoena standard.

Today, technology has greatly changed how people access their e-mail. While some users employ applications like Microsoft Outlook, which download e-mails to their home computers, many other users use web-based e-mail clients, like Gmail, which store e-mail communications permanently on third-party servers. Under current laws, users of the latter are afforded less Fourth Amendment protection than users of the former for essentially doing the same activity after 180 days pass. This distinction is unconstitutional.

The Sixth Circuit was the first circuit court to properly address this issue, in Warshak v. United States, and its panel decision held that e-mail users have a reasonable expectation of privacy with their e-mails stored on third-party servers so long as the service provider does not maintain a policy that they would actively audit the users' communications. The Sixth Circuit vacated the panel opinion en banc for lack of ripeness and did not reach the underlying constitutional issues.

This Note recommends that Congress amend the ECPA to bring it in line with current e-mail communication technology. Congress should update the ECPA by eliminating the 180-day distinction of section 2703(a). By doing so, Congress will statutorily extend Fourth Amendment protection to communications that e-mail users today reasonably expect to have protected.

Keywords: Fourth Amendment, Warshak v. United States, Electronic Communications Privacy Act, e-mail, privacy

JEL Classification: K14