What is an expectation to privacy? The Fourth Amendment provides this constitutional right. An expectation of privacy is related to, but is not the same as, a right to privacy, a much broader concept which is found in many privacy laws. In general, one cannot have a reasonable expectation of privacy in things held out to the public. But, what about email and other electronic communications/information?
The Stored Communications Act (SCA) was enacted in 1986 to provide “Fourth-Amendment” like privacy protection (search warrant, probable cause) to email and other digital communications stored on the internet. The Fourth Amendment to the U.S. Constitution protects the people’s rights to “be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” It is seen as a right that extends to people only and not places. In many cases, the Fourth Amendment doctrine has held that users relinquish “any expectation of privacy” when they entrust the security of online information to a third-party Internet Service Provider (IPS).
The SCA holds that ISPs will be criminally liable for disclosure of the contents of any communication which is carried or maintained on its service to any person or entity without proper authorization or a search warrant and court order. ISPs are allowed to share non-content information such as log data and name/address of email recipient to anyone other than a governmental entity.
The SCA is a starting point for any questions we may receive in our AMS capacities pertinent to “non-patient care” email/electronic communication privacy.
For more information on the Stored Communications Act, please contact Linda Mancini at (781) 272-8001.