NCJ Number
219493
Journal
Journal of Criminal Law and Criminology Volume: 97 Issue: 2 Dated: Winter 2007 Pages: 569-599
Date Published
2007
Length
31 pages
Annotation
This article explores one facet of the Stored Communications Act of 1986: its restrictions on Internet Service Provider (ISP) disclosures to criminal defendants and civil litigants.
Abstract
The main argument is that as the amount of online evidence continues to expand, criminal defendants and civil litigants are discovering that the Stored Communications Act may have created an uneven playing field in which law enforcement and governmental entities can access ISP information but citizens cannot. In fact, currently the Act places an absolute bar on ISP disclosures of the contents of communications in electronic storage to private parties. In making this argument, the authors analyze how the Act resulted in an uneven playing field and how it impacts both criminal and civil cases. The constitutional implications are also considered and include the criminal defendants’ right to full evidence disclosure, their right to due process, and their right to effective assistance of counsel. The authors propose a simple amendment to the Stored Communications Act that would even the playing field between governmental entities and criminal defendants and civil litigants while at the same time preserving the Act’s role as the preeminent arbiter of rights to remotely stored electronic content. This amendment would include a court order provision allowing the disclosure of information to criminal defendants and civil litigants under the same scrutiny applied to non-governmental entities. This proposed amendment would harmonize the interests of the criminal defendant, civil litigant, subscriber, and ISP. The proposed amendment would also provide both the subscribed and the ISP with notice and an opportunity to be heard, thus protecting their rights and allowing the ISP to move to quash or modify the order and to recover reasonable cost reimbursements. Footnotes