Communications Privacy for and by Whom?

Ryan Calo

University of Washington - School of Law; Stanford University - Law School; Yale Law School

April 24, 2014

University of Pennsylvania Law Review Online, Vol. 162, pp. 231-38, 2014
University of Washington School of Law Research Paper

Professor Orin Kerr has proposed an elegant new thought experiment in his piece, The Next Generation Communications Privacy Act. The Article efficiently relays the history and structure of the Electronic Communications Privacy Act of 1986 (ECPA), a law that “grants Internet users a set of statutory privacy rights that limits the government’s power to access a person’s communications and records.” The Article then ably diagnoses what is wrong with ECPA today — namely, that changes in technology and constitutional law over the last quarter century have rendered ECPA outdated. Finally, the Article proposes four plausible principles to guide Congress were it to write a new electronic communications privacy statute from scratch, rather than reform ECPA at the margins, as contemporary advocates propose.

Professor Kerr’s argument is clear, forceful, and fundamentally sound in the sense that his conclusion follows from his premises. The Article also makes a series of quiet assumptions, however, that readers may find controversial.

First, the Article reads as though ECPA exists only to protect citizens from public officials. According to its text and to case law, however, ECPA also protects private citizens from one another in ways any new act should revisit. Second, the Article assumes that society should address communications privacy with a statute, whereas specific experiences with ECPA suggest that the courts may be better suited to address communications privacy — for reasons Professor Kerr himself offers. Finally, the Article addresses ECPA in isolation from the Foreign Intelligence Surveillance Act of 1978 (FISA), which seems strange in light of revelations that our government systematically intercepts and stores its citizens’ electronic communications under FISA’s auspices.

Put another way, The Next Generation Communications Privacy Act succeeds marvelously on its own terms, but not necessarily on everyone else’s. Worse still, we do not benefit from Professor Kerr’s powerful insights regarding the issues he omits.

Number of Pages in PDF File: 8

Keywords: privacy, electronic surveillance, online privacy, electronic communications, national security, legislation

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Date posted: May 1, 2014 ; Last revised: May 23, 2014

Suggested Citation

Calo, Ryan, Communications Privacy for and by Whom? (April 24, 2014). University of Pennsylvania Law Review Online, Vol. 162, pp. 231-38, 2014; University of Washington School of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2431029

Contact Information

Ryan Calo (Contact Author)
University of Washington - School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

Stanford University - Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Yale Law School ( email )
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New Haven, CT 06511
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