Published by LawTechie - June 12, 2012 - LawTechie

FacebookThe Stored Communications Act (“SCA”) was enacted as a quasi-Fourth Amendment protection for individuals to protect their wired and electronic communications from warrantless third-party disclosure to the government. For example, sans the Act, the Fourth Amendment does not provide any sort of protection against ISPs disclosing user emails to a government agency that simply “asks” for them because communications stored on third-party servers have been deemed to carry no “expectation of privacy” as required to fall under Fourth Amendment protection.

In recent years, we have seen courts struggle with new technology and asked to evaluate whether the SCA applies to things like wireless communications, and now, Facebook posts. California says yes:

In addition to protecting traditional electronic mail services and remote processing services, the courts have indicated the SCA was intended by Congress to protect electronic bulletin boards as well. “„Computer bulletin boards generally offer both private electronic mail service and newsgroups. The latter is essentially email directed to the community at large, rather than a private recipient.‟ [Citation.] The term „computer bulletin board‟ evokes the traditional cork-and-pin bulletin board on which people post messages, advertisements, or community news. [Citation.] Court precedent and legislative history establish that the SCA‟s definition of an ECS provider was intended to reach a private [Bulletin Board System]. [Citations.]” (Crispin, supra, 717 F.Supp.2d at pp. 980-981.) A private bulletin board system is essentially one with restricted access rather than one open to the public at large.

Juror Number One v. Superior Court, C067309 (Ca Ct. App.; May 31, 2012).

The Court ultimately ordered disclosure of the Facebook posts because the “government” in this case had a valid probable-cause-like reason to seek disclosure, but the ruling is nevertheless significant in that civil plaintiffs will no longer be able to utilize mere subpoena power (without a court order) to force Facebook and Facebook-like “bulletin boards” to disclose private message (in California anyway).

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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