Reasonable Expectations of Privacy Settings: Social Media and the Stored Communications Act

In 1986, Congress passed the Stored Communications Act (“SCA”) to provide additional protections for individuals’ private communications content held in electronic storage by third parties. Acting out of direct concern for the implications of the Third-Party Records Doctrine—a judicially created doctrine that generally eliminates Fourth Amendment protections for information entrusted to third parties—Congress sought to tailor the SCA to electronic communications sent via and stored by third parties. Yet, because Congress crafted the SCA with language specific to the technology of 1986, courts today have struggled to apply the SCA consistently with regard to similar private content sent using different technologies. This Article argues that Congress should revisit the SCA and adopt a single, technology-neutral standard of protection for private communications content held by third-party service providers. Furthermore, it suggests that Congress specifically intended to limit the scope of the Third-Party Records Doctrine by creating greater protections via the SCA, and thus courts interpreting existing law should afford protection to new technologies such as social media communications consistent with that intent based on individuals’ expressed privacy preferences. † Authors are listed in alphabetical order by last name, and this ordering does not reflect the contributions of any one author. Christopher J. Borchert is an Associate of the law firm Connell Foley LLP. He received his J.D., with Honors, and Intellectual Property Certificate from the University of Connecticut School of Law and his B.A. in Political Communication from the George Washington University. Fernando M. Pinguelo is a Partner in the New Jersey and New York offices of Scarinci Hollenbeck and Chair of the firm\u0027s Cyber Security \u0026 Data Protection Group. He received his J.D. and B.A. magna cum laude from Boston College. David Thaw is an Assistant Professor of Law and Information Sciences at the University of Pittsburgh and an Affiliated Fellow of the Information Society Project at Yale Law School. David received his J.D. from Berkeley Law, Ph.D. in Information Management and Systems and M.A. in Political Science from UC Berkeley, and B.S. in Computer Science and B.A. in Government and Politics from the University of Maryland. No. 1] DUKE LAW \u0026 TECHNOLOGY REVIEW 37