Privacy As Privilege: The Stored Communications Act and Internet Evidence

73 Pages Posted: 21 Aug 2020 Last revised: 11 Jun 2021

See all articles by Rebecca Wexler

Rebecca Wexler

University of California, Berkeley, School of Law

Date Written: August 13, 2020

Abstract

This Article exposes a profound and growing injustice that major technology companies have propagated through every level of the judiciary under the guise of protecting data privacy. The Supreme Court has repeatedly proclaimed that: “In our judicial system, the public has a right to every [person’s] evidence.” Yet, for over a decade, Facebook, Twitter, Google, and Github have leveraged the Stored Communications Act (SCA) — a key data privacy law for the Internet — to bar criminal defendants from subpoenaing the contents of another’s online communications, even when those communications could exonerate the wrongfully accused. Every appellate court to rule on this issue to date has agreed with the companies.

This Article argues that all of these decisions are wrong as a matter of binding Supreme Court doctrine and just policy. The Article makes two novel doctrinal claims and then evaluates the policy consequences of those claims. First, when courts read the SCA to block criminal defense subpoenas, they construe the statute as creating an evidentiary privilege. Second, this construction violates a binding rule of privilege law: courts must not construe ambiguous silence in statutory text as impliedly creating a privilege because privileges are “in derogation of the search for truth.” This Article is the first to read the SCA through the lens of evidentiary privilege law. Overturning the conventional wisdom and correcting the erroneous case law on this issue will enhance truth-seeking and fairness in the criminal justice system with minimal cost to privacy.

Keywords: Stored Communications Act, Internet, Evidence, Subpoenas, Criminal Justice

Suggested Citation

Wexler, Rebecca, Privacy As Privilege: The Stored Communications Act and Internet Evidence (August 13, 2020). 134 Harv. L. Rev. 2721 (2021), Available at SSRN: https://ssrn.com/abstract=3673403 or http://dx.doi.org/10.2139/ssrn.3673403

Rebecca Wexler (Contact Author)

University of California, Berkeley, School of Law ( email )

691 Simon Hall
Berkeley, CA 94720
United States
510 664 5258 (Phone)

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