HR 699, the Email Privacy Act, which would make significant changes to update the Stored Communications Act, was presented at a listening session hosted by the House Judiciary Committee on June 25. The act is sponsored by over half of the House of Representatives, which would appear to indicate great support for it. The purpose of the act is to amend the SCA, which was enacted in 1986 to protect electronically stored information kept not by users on their personal devices but rather by third parties, such as Internet service providers.
In my last column, “The USA Freedom Act and Fourth Amendment Jurisprudence,” I looked at Riley v. California, 189 L.Ed. 2d 430 (2014), and the USA Freedom Act to question whether the courts were in a better position than Congress to apply the second prong of Justice John Marshall Harlan II’s famous two-pronged test from Katz v. United States, 389 U.S. 347 (1967), namely, determining what expectation of privacy society deems “reasonable” when deciding whether a thing or location was protected by the Fourth Amendment. In that column, I was critical of the court’s application of the two-pronged test and suggested that, since the courts were anti-majoritarian while Congress was designed to provide a voice to the people, the latter would be in a better position to determine what a “reasonable expectation of privacy” was. Looking at the act, however, reveals that Congress, as well, has its issues when determining what things and places should be accorded privacy protections. In this month’s column, I look at the act and a recent case, Anzaldua v. Northeast Ambulance & Fire Protection District, No. 14-1850 (8th Cir, July 10, 2015) to discuss the issue.
HR 699 and the SCA
All of the changes to the SCA proposed by HR 699 are common sense and should have been made a long time ago. The issue with HR 699 is what it fails to cover, not what it does cover.
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