The Intersection Between Social Networking and Litigation Where the Fourth Amendment may require no more than a subpoena to obtain certain information, the SCA confers greater privacy protections.23 The SCA limits the government’s ability to compel third-party providers to disclose content and information in their possession about their customers and subscribers.24 Specifically, the SCA regulates when an electronic communication service (“ECS”)25 provider and a remote computing service (“RCS”)26 provider may disclose content or information about a customer’s electronic communications to third parties.27 The SCA prevents an ECS provider from “knowThe increasing amount of ingly divulg[ing] to any person or entity information available on social the contents of a communication while in networking sites presents unique and electronic storage by that service.”28 An RCS provider is prohibited from “knowpotentially complex challenges for ingly divulg[ing] to any person or entity litigation, including what information the contents of any communication which about a user can be obtained from a is carried or maintained on that service … solely for the purpose of providing storage social networking site. or computer processing services” to any person or entity.29 However, “a person who does not provide an [ECS or RCS] can disclose or use with impunity the contents of an electronic communication unlawfully obtained from electronic storage.”30 The SCA makes it a criminal offense for whomever “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility; and thereby obtains … [an] electronic communication while it is in electronic storage in such system.”31 Although the SCA was enacted prior to the advent of social networking sites, the absence of modern legislation leaves courts to apply the framework established by the SCA when determining what, if any, user information a social networking site must disclose. Applying the SCA to modern technology can be difficult and confusing.32 23. Id. at 1212–13. 24. 18 U.S.C. § 2703. 25. The SCA defines an ECS provider as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15). 26. The SCA defines RCS as “the provision to the public of computer storage or processing services by means of an electronic communications system.” 18 U.S.C. § 2711(2). 27. See 18 U.S.C. § 2703. 28. 18 U.S.C. § 2702(a)(1). “Electronic storage” is “(A) any temporary, intermediate storage of wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an [ECS] for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17). 29. 18 U.S.C. § 2702(a)(2). 30. Wesley Coll. v. Pitts, 974 F. Supp. 375, 389 (D. Del. 1997) (citing 18 U.S.C. § 2702(a)). 31. 18 U.S.C. § 2701(a). The penalty for violating the SCA may include a fine and/or imprisonment of up to a year for a first offense, and a fine and/or imprisonment of up to two years for subsequent offenses. Id. at (b). 32. The difficulty in interpreting the SCA is “compounded by the fact that the [SCA] was written prior to the advent of the internet and the World Wide Web. As a result, the existing statutory framework is ill-suited to address modern forms of communication like [Facebook and MySpace]. Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002). “[U]ntil Congress brings the laws in line with modern technology, protection of the Internet and websites such as [these] will remain a confusing and uncertain area of the law.” Id.
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Volume 1, Issue 4