Privacy As Privilege: The Stored Communications Act and Internet Evidence
73 Pages Posted: 21 Aug 2020 Last revised: 11 Jun 2021
Date Written: August 13, 2020
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
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