Published on:

Stored Communications Act Covers Facebook Posts

The expansion of social media networks has helped connect people and ideas all over the world. However, it has also raised substantial privacy concerns as more people store personal information on the web. Congress has enacted legislation in an effort to circumvent the dangers associated with online networks–for example, the Electronic Communications Privacy Act, the Child Online Privacy Protection Act, and the Stored Communications Act. States have also passed their own legislation to help protect cyber activity within their jurisdiction. For example, California passed “Do Not Track” legislation in November 2013 requiring websites to disclose their tracking practices. These laws, along with several others, work to protect individuals, entities, and their related private information as they continue to operate and conduct business over the Internet. Recently, a federal court applied the Stored Communications Act and found that it is applicable to a user’s wall posts.

What Are The Provisions of the Stored Communications Act?

In 1986, Congress passed the Stored Communications Act (“SCA”) which is codified under 18 U.S.C. §§ 2701 et seq.  The SCA aims to protect privacy interests implicated throughout electronic communications. Various court holdings have interpreted the SCA to apply to non-public electronic communications that take place over electronic communication services in an electronic storage medium. Violations of the SCA may carry potential criminal penalties, including serving time in prison. The penalties and liabilities will generally depend on the circumstances of the violation. The SCA does allow Internet service providers to share “non-content” with another person or entity. This includes log data and recipients’ email addresses. Still, this is a limited exception to the general rules and the SCA is still prohibited with sharing any information with a government entity. The government may compel Internet service providers to provide stored information. For electronically held communications, the government is required to have a probable cause and obtain a search warrant. For communications stored remotely, the government only needs a subpoena or a court order. Hence, remotely stored data enjoys a lower level of protection since it is easier to submit a subpoena rather than to obtain a search warrant.

What Online Activity Does the Stored Communications Act Cover?

In a 2013 case, Ehling v. Monmouth-Ocean Hospital Services Corp., a federal court found that private Facebook posts that are not available to the public, satisfy the requirements of the SCA and allow for a cause of action. The court explained that by allowing users to select their privacy preferences for their accounts, Facebook had effectively placed itself within SCA’s jurisdiction. For purposes of this law, when users choose to make their Facebook “walls” private, wall posts then become private electronic communications that are transmitted and stored with Facebook. However, in applying the SCA, if a third-party user has authority to access a private communication, there cannot be liability under the SCA. Indeed, in this case the access at issue was authorized, so the plaintiff did not qualify for a remedy.

At the Law Offices of Salar Atrizadeh, we are knowledgeable and experienced in a wide range of areas dealing with Internet law. To further discuss Internet legislation and how it may effect you, contact us to speak with an attorney.