Note: Status Update: Adapting the Stored Communications Act to a Modern World

By Jake Vandelist. Full text here.

This Note addresses the Stored Communications Act’s application to civil discovery. Congress passed the Stored Communications Act in 1986 to extend Fourth Amendment protection to electronic communications and remote computing. Congress never intended for the SCA to limit civil discovery of these communications, however, judges have expanded the SCA’s scope to limit civil discovery of electronic communications in many jurisdictions. As a result, many civil litigants are barred from filing third party subpoenas to obtain information from Internet service providers like Google, Facebook, and Twitter due to this judicial extrapolation of the SCA to civil discovery.

In order to remedy this problem of judicial overreach, Congress should amend the SCA to include a civil discovery provision. First, this provision should update the anachronistic definition of what is protected information. Second, the amendment should codify a user exception, allowing the discovery of electronic information through the user. Third, the amendment should allow discovery of information stored by Internet service providers like Google and Facebook if the requesting party pays the responding party’s costs. Such a solution would satisfy the interests of justice and efficiency, both of which are goals set out in Rule 1 of the Federal Rules of Civil Procedure.