A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending it

36 Pages Posted: 5 Aug 2003 Last revised: 6 Jul 2016

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law


Americans care deeply about their Internet privacy. But if they want to know how federal law protects the privacy of their stored Internet communications, they'll quickly learn that it's surprisingly difficult to figure out. The federal statute that protects the privacy of stored Internet communications is the Stored Communications Act (SCA), passed as part of the Electronic Communications Privacy Act of 1986 and codified at 18 U.S.C. section 2701-11. But courts, legislators, and even legal scholars have had a very hard time understanding the method behind the madness of the SCA. The statute is dense and confusing, and that confusion has made it difficult for legislators to legislate in the field, reporters to report about it, and scholars to write scholarship in this very important area.

This Article presents a user's guide to the SCA. It explains in relatively simple terms the structure and text of the Act so that legislators, courts, academics, and students can understand how it works - and in some cases, how it doesn't work. I hope to explain the basic nuts and bolts of the statute and show that the statute works reasonably effectively, although certainly not perfectly. My second goal is to show how Congress needs to amend the SCA. I recommend three ways that Congress should rethink the SCA to better protect the privacy of stored Internet communications, clarify its protections, and update the statute for the present. Specifically, I argue that Congress should raise the threshold the government must satisfy to compel the contents of certain Internet communications; that it should simplify the statute dramatically by eliminating the confusing categories of electronic communication service and remote computing service, and eliminating redundant text; and that it should restructure the remedies scheme for violations of the statute.

Keywords: surveillance, privacy

JEL Classification: K1, K14

Suggested Citation

Kerr, Orin S., A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending it. 72 George Washington Law Review 1208 (2004)., Available at SSRN: https://ssrn.com/abstract=421860 or http://dx.doi.org/10.2139/ssrn.421860

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Berkeley, CA 94720-7200
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics