SECRET SEARCHES: THE SCA'S STANDING CONUNDRUM.

Author:Halpern, Aviv S.
Position:Stored Communications Act
 
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The Stored Communications Act ("SCA") arms federal law enforcement agencies with the ability to use a special type of warrant to access users' electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user's electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions of the SCA that allow for nondisclosure unreviewable by the judiciary. Users that were searched but not charged have standing to challenge the scope of these warrants, but receive no notice that the search occurred. Service providers receive notice, but have no standing on behalf of their users under the Fourth Amendment. This Note argues that the nondisclosure orders therefore create a procedural due process violation in addition to a Fourth Amendment violation. Users may have their privacy and property interests infringed without a meaningful opportunity to be heard. Under a due process theory, as opposed to a Fourth Amendment theory, this practice can finally be judicially reviewed.

Table of Contents Introduction I. The Intersection of Fourth Amendment Jurisprudence and the Internet A. The SCA's Role as a Legislative Protection for ESC B. Statutory Framework for Governmental Access to ESC II. The Notice-Standing Two-Step A. SCA Warrants and Traditional Warrants B. The Standing Conundrum III. The Procedural Due Process Argument A. Constitutional Interests B. Risk of Erroneous Deprivation C. Addressing Government Interests IV. Third-Party Standing Under a Due Process Theory Conclusion INTRODUCTION

Access to the internet has become such an integral part of society that the United Nations has declared it a fundamental human right. (1) Even the Supreme Court has acknowledged that we are officially in the "Cyber Age." (2) But because internet access and online storage require third-party service providers, there may be significant constitutional issues with respect to electronically stored information ("ESI"). Under the third-party doctrine, the Fourth Amendment generally does not protect information disclosed to third parties. (3) And because electronic communications often require the involvement of third-party service providers, it is unclear whether the Fourth Amendment provides any meaningful protection to information stored by third parties, (4) let alone electronically stored communications ("ESC"). (5) The risk of providing the government with unfettered access to potentially sensitive ESI motivated Congress to pass the Stored Communications Act ("SCA"), (6) ensuring that at least some protection extends to electronic information. (7)

Congress passed the SCA in 1986, before the infrastructure and capabilities of the internet were truly understood. (8) The SCA provides a statutory framework for determining when the government can access certain types of ESC from third-party service providers. (9) More specifically, the Act enumerates special tools for government agents to access ESC--including subpoenas, court orders, and warrants ("SCA warrants")--and permits searches without notice. (10)

Sometimes, with the use of nondisclosure orders, the Act even prohibits service providers from informing targeted users of a search. Until recently, many of the nondisclosure orders existed in perpetuity--preventing any notice to the user. (11) Because of an October 2017 guidance document issued by the Department of Justice, federal prosecutors may prevent disclosure for up to one year. (12) In some circumstances, "federal prosecutors can seek gag orders that last longer than a year.... The guidance does not bind state prosecutors." (13)

Although this guidance changes federal policy, it has not yet been adopted into law. In the meantime, the government is still afforded the ability to conduct searches without, or with significantly delayed, notice. This practice means that, during the period of secrecy, there is no one with both standing and notice to challenge the search or seizure, "thus eliminating one of the most powerful checks on government overreach." (14)

Challenges to SCA warrants on Fourth Amendment grounds have failed. Fourth Amendment standing doctrine limits challenges to claimants whose own reasonable expectations of privacy were violated. (15) Courts have yet to address, however, whether a procedural due process challenge would permit third-party standing. Because the statute does not require authorities to notify a user of a search, the following circumstance arises: the user, who has standing under the Fourth Amendment but no notice of the search, cannot challenge the search or seizure; whereas the service provider, who has notice but no Fourth Amendment standing, cannot assert the user's rights. This Note argues that due process claims--as opposed to Fourth Amendment claims--can overcome this standing conundrum. The due process theory allows for a novel standing argument that should circumvent the Fourth Amendment's barriers to third-party standing and finally provide an opportunity to check government overreach. The search and seizure deprives the user of property and privacy interests in their communications without a meaningful opportunity to be heard. (16) And because the statute lacks a data-deletion requirement, the deprivation could potentially be indefinite.

This Note analyzes these due process concerns. It proposes legislative action and suggests alternative theories to assert users' rights until legislative action is taken. Part I provides background information on the history and role of the SCA. Part II explains the Fourth Amendment standing problem and how the nondisclosure orders make SCA warrants unreviewable because no one with standing will have notice. Part III argues that use of SCA warrants presents unique procedural due process concerns because of the lack of notice and an opportunity to be heard. Then, Part VI lays out the third-party standing argument under a due process theory.

  1. THE INTERSECTION OF FOURTH AMENDMENT JURISPRUDENCE AND THE INTERNET

    Traditional Fourth Amendment jurisprudence does not neatly apply to modern technological advancements. (17) Intended to protect individuals from government overreach, the reasonableness requirement of the Fourth Amendment restricts the government's ability to search and to seize, whereas warrants provide a legal tool that authorizes it to do so. (18) Warrantless searches, on the other hand, are "per se unreasonable under the Fourth Amendment," subject only to a few exceptions. (19) Administrative searches are one such exception. In these cases, a "special need" makes the warrant and probable-cause requirements impracticable when seeking information from third-party records. (20)

    But Fourth Amendment doctrine was developed for physical spaces, not cyberspace. (21) The doctrine's foray into the cyberworld has been fraught with difficulty and unease; electronic communications are no exception. So, to provide guidance on procedures when seeking access to ESI, Congress passed the Stored Communications Act. (22) This Part will broadly discuss the application of the Fourth Amendment to ESI, specifically focusing on the SCA. Section I.A explains the role of the SCA. Section I.B lays out the statutory framework governing access to electronic communications. Section I.C explores the differences between traditional warrants and SCA warrants and explains how the differences can result in the denial of an individual's procedural due process right.

    1. The SCA's Role as a Legislative Protection for ESC

      After "the advent of computerized recordkeeping systems," (23) Congress became increasingly concerned about the potential "erosion of [the] precious right" to privacy. (24) And at the time, the third-party doctrine seemed to operate as a bright-line rule, discarding any expectation of privacy in information shared with a third party (25)--like a company operating a recordkeeping system. This led to concerns that network and internet activities would be outside Fourth Amendment protection. (26) The Fourth Amendment only reaches spaces considered to be constitutionally protected, such as a person's home, (27) as well as other areas where someone has a reasonable expectation of privacy, such as a phone booth. (28)

      When accessing computer networks, such as the internet, there is no physical "home" to consider. (29) In other words, one's physical location when accessing the internet does not change Fourth Amendment analysis. Whether a "conversation" over a computer network occurred while the participants were physically inside their homes does not provide any additional protection. Yet, if the conversation occurred in person between two individuals inside their home, it would likely be protected. The internet complicates matters because, unlike a physical conversation, accessing computer networks and recordkeeping systems often requires the cooperation of third-party service providers, potentially diminishing any expectation of privacy in the information. (30)

      The SCA exists to address these concerns and provide statutory protections for ESC, (31) extending some of the traditional Fourth Amendment protections to an area of law fraught with uncertainty. (32) Further indicative of its intent, Congress baked the traditional warrant requirement of Federal Rule of Criminal Procedure 41 ("Rule 41") into the statute. (33) But at the time the SCA was passed, Congress did not yet understand how old legal doctrines--let alone the Fourth Amendment--would apply to the internet. (34) Since 1986, however, the internet has changed. Internet access still requires a third-party...

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