Reasonable Expectations of Privacy Settings: Social Media and the Stored Communications Act

31 Pages Posted: 23 Aug 2013 Last revised: 29 Jan 2015

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 - School of Law; University of Pittsburgh - School of Information Sciences; Yale University - Information Society Project; University of Pittsburgh - Graduate School of Public & International Affairs

Date Written: January 8, 2015

Abstract

In 1986, Congress passed the Stored Communications Act (“SCA”) to provide additional protections for individuals’ private communications content held in electronic storage by third parties. Acting out of direct concern for the implications of the Third-Party Records Doctrine — a judicially created doctrine that generally eliminates Fourth Amendment protections for information entrusted to third parties — Congress sought to tailor the SCA to electronic communications sent via and stored by third parties. Yet, because Congress crafted the SCA with language specific to the technology of 1986, courts today have struggled to apply the SCA consistently with regard to similar private content sent using different technologies.

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.

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

Suggested Citation

Borchert, Christopher J. and Pinguelo, Fernando M. and Thaw, David, Reasonable Expectations of Privacy Settings: Social Media and the Stored Communications Act (January 8, 2015). 13 Duke L. & Tech. Rev. 36 (2015); U. of Pittsburgh Legal Studies Research Paper No. 2015-02. Available at SSRN: https://ssrn.com/abstract=2306839 or http://dx.doi.org/10.2139/ssrn.2306839

Christopher J. Borchert

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

Fernando M. Pinguelo

SCARINCI HOLLENBECK, LLC ( email )

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
Brazil

HOME PAGE: http://www.scarincihollenbeck.com/attorneys/partners/fernando-m-pinguelo/

Fulbright Foundation ( email )

6 Vassilissis Sophias Avenue, 1st floor
Athens, 106 74
Greece

HOME PAGE: http://www.scarincihollenbeck.com/attorneys/partners/fernando-m-pinguelo/

David Thaw (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

HOME PAGE: http://www.davidthaw.com

University of Pittsburgh - School of Information Sciences ( email )

Pittsburgh, PA 15260
United States

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of Pittsburgh - Graduate School of Public & International Affairs ( email )

Pittsburgh, PA 15260-0001
United States

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