Chapter 121 §§ 2701–2713)[1] is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party Internet service providers (ISPs).
The Fourth Amendment to the U.S. Constitution protects the people's right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
In part, this is because the Fourth Amendment defines the "right to be secure" in spatial terms that do not directly apply to the "reasonable expectation of privacy" in an online context.
In addition, society has not reached clear consensus over expectations of privacy in terms of more modern (and developing, future) forms of recorded and/or transmitted information.
"[4] The report concluded that "[t]he existing statutory framework and judicial interpretations thereof do not adequately cover new and emerging electronic surveillance technologies.
However, ISPs are allowed to share "non-content" information, such as log data and the name and email address of the recipient, with anyone other than a governmental entity.
In addition, ISPs that do not offer services to the public, such as businesses and universities, can freely disclose content and non-content information.
§ 2703) of the SCA describes the conditions under which the government is able to compel an ISP to disclose "customer or subscriber" content and non-content information for each of these types of service:[8] This section also addresses the requirements for a court order for disclosure.
§ 2710) of SCA describes wrongful disclosure of videotape or sale records and resulting civil action in district court in the event of a violation under this section.
The terms defined are those in section 2510 of the title, "remote computing service," "court of competent jurisdiction," and "government entity.
[18] With respect to the government's ability to compel disclosure, the most significant distinction made by the SCA is between communications held in electronic communications services, which require a search warrant and probable cause, and those in remote computing services, which require only a subpoena or court order, with prior notice.
Orin Kerr argues that, "the SCA was passed to bolster the weak Fourth Amendment privacy protections that applied to the Internet.
Subsequently, the Sixth Circuit en banc vacated the panel's ruling and remanded for dismissal of the constitutional claim, reasoning that, because the Court had "no idea whether the government will conduct an ex parte search of Warshak's e-mail account in the future and plenty of reason to doubt that it will," the matter was not ripe for adjudication.
[20] Zwillinger and Sommer[21] observed that this decision erected a barrier to "prospective" challenges by individuals with reason to believe they will be targets of surveillance.
In light of an earlier ruling upholding extraterritorial application of the SCA in In Re Warrant of a Certain E-mail Account Controlled and Maintained by Microsoft Corporation, a new bill called the LEADS Act, was introduced.
[28] On December 4, 2013, government authorities obtained a SCA warrant from Magistrate Judge Francis in the Southern District of New York's case In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.[29] Microsoft identified that the requested account was served on a server in Ireland.
When Congress passed the CLOUD Act in 2018, the Supreme Court decided the matter had become moot, and it vacated the Second Circuit's decision.
The case is considered to highlight issues related to the antiquated nature of the SCA compared to modern Internet technologies.
[35] Despite this, court's decisions like Crispin v. Christian Audigier, Inc evidence that SCA granted protections can be allocated to certain social media communication channels.
A numerical upper limit to the number of users, or "friends" a profile is connected to would be "arbitrary line drawing" leading to "anomalous result(s).
When the judge claimed that social media platforms are not subject to the SCA, Crispin filed a motion to reconsider in the Central District of California.
The courts in this case held Facebook and MySpace to be RCS providers in regard to comments and wall posts as open messages.
[43] Though these communications are not temporary or intermediate storage under subjection (A), the courts found that comments and wall posts are stored for purposes of backup protection.
[44] On July 23, 2024, the California Court of Appeal for the Fourth Appellate District held that the business models of Meta (owner of Facebook) and Snap Inc. (owner of Snapchat) place them beyond the coverage of the SCA because those companies' social media platforms already access and use customer information as part of their regular business operations.
The Act was invoked in the 2010 Robbins v. Lower Merion School District case, where plaintiffs charged two suburban Philadelphia high schools with secretly spying on students by surreptitiously and remotely activating webcams embedded in school-issued laptops the students were using at home, violating their right to privacy.
[50] Flexibility dictates that a court decision may come down to a rhetoric, like if a server is a storage site or a communications center (which could happen in the case of Gmail.)
Individual case law interpretations have the potential to leave undesirable political, social, and economic impacts both in the U.S. and globally.
Absence of Congressional legislative SCA reform since its 1986 enactment has been its biggest criticism due to historical and projected technological growth.