Reasonable Expectations of Privacy Settings: Contemplating the Stored Communications Act Through the Prism of Social Media

Christopher J. Borchert

University of Connecticut - School of Law

Fernando M. Pinguelo

SCARINCI HOLLENBECK, LLC; Seton Hall University School of Law; eLessons Learned Blog; Universidade Presbiteriana Mackenzie; Fulbright Foundation

David Thaw

University of Pittsburgh; Yale University - Information Society Project

August 23, 2013

Duke Law & Technology Review, Forthcoming

The Stored Communications Act (SCA) provides additional protections for individuals' private communications content held in electronic storage by third parties. As technology has advanced since the SCA's passage, however, courts have struggled to understand the breadth of its application — often times inconsistently affording protection to similar private content sent using different technologies.

Modern information and communications technologies substantially enhance the way individuals communicate with one another. Provision of these services, however, necessarily requires that third parties store and have access to individuals' communications content — regardless of whether that content is private or public. In the 1980s, Congress recognized this growing trend, and out of direct concern for the implications of the Third-Party Records Doctrine, which generally eliminates Fourth Amendment protections for information entrusted to third parties, passed the SCA to provide individuals with greater protections.

Individuals must be able to understand the privacy protections their private communications will enjoy, and cannot do so if those protections depend on a court's post-hoc analysis of a given technology. Rather, individuals should be able to rely on expectations established as a function of their expressed privacy preferences. This Article argues that Congress should revisit the SCA and adopt a single, technology-neutral standard of protection for private communications content held by third-party service providers. Furthermore, it suggests that Congress specifically intended to limit the scope of the Third-Party Records Doctrine by creating greater protections via the SCA, and thus courts interpreting existing law should afford protection to new technologies such as social media communications consistent with that intent based on individuals' expressed privacy preferences.

Number of Pages in PDF File: 30

Keywords: SCA, Stored Communications Act, privacy, Fourth Amendment, surveillance

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Date posted: August 23, 2013 ; Last revised: September 23, 2013

Suggested Citation

Borchert, Christopher J. and Pinguelo, Fernando M. and Thaw, David, Reasonable Expectations of Privacy Settings: Contemplating the Stored Communications Act Through the Prism of Social Media (August 23, 2013). Duke Law & Technology Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2306839 or http://dx.doi.org/10.2139/ssrn.2306839

Contact Information

Christopher J. Borchert
University of Connecticut - School of Law ( email )
65 Elizabeth Street
Hartford, CT 06105
United States
Fernando M. Pinguelo
802 West Park Avenue
Suite 222
Ocean, NJ 07712
United States
7325474918 (Phone)
732.568.8375 (Fax)
HOME PAGE: http://www.scarincihollenbeck.com/attorneys/partners/fernando-m-pinguelo/
Seton Hall University School of Law ( email )
One Newark Center
Newark, NJ 07102
United States
HOME PAGE: http://law.shu.edu/
eLessons Learned Blog ( email )
United States
HOME PAGE: http://www.eLLblog.com
Universidade Presbiteriana Mackenzie ( email )
Rua da Consolação 920
São Paulo, 010302907
HOME PAGE: http://www.scarincihollenbeck.com/attorneys/partners/fernando-m-pinguelo/
Fulbright Foundation ( email )
6 Vassilissis Sophias Avenue, 1st floor
Athens, 106 74
HOME PAGE: http://www.scarincihollenbeck.com/attorneys/partners/fernando-m-pinguelo/
David Thaw (Contact Author)
University of Pittsburgh ( email )
3900 Forbes Avenue
Pittsburgh, PA 15260
United States
HOME PAGE: http://www.davidthaw.com
Yale University - Information Society Project ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
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