Storage and Privacy in the Cloud: Enduring Access to Ephemeral Messages

Authors

Sarah Salter

Abstract

The paper examines the distinction between "stored communications" and the greater privacy protection given to communications in the process of transmission under U.S. federal law. The issue arises in the context of voice mail, text messages, and email. Statutes examined include the Stored Communications Act, the Electronic Communications Privacy Act ("ECPA"), the Wiretap Act, and the language amending the Wiretap Act to eliminate storage from the definition of wire communication in the USA Patriot Act. Case discussions examine the development of the concept of "stored" communications. The emphasis is on recent cases after the USA Patriot Act and a decision by the Ninth Circuit Federal Court of Appeals which held that, in thus amending the act, congress "essentially reinstated the pre-ECPA definition of 'intercept'-acquisidon contemporaneous with transmission, with respect to wire communications," the purpose being to "reduce protection of voice mail messages to the lower level of protection provided other electronically stored communications." Konop v. Hawaiian Airlines, Inc., 308 F.3d 868 (Ninth Cit. 2002). A comprehensive revision of the ECPA for consistency in policy and application is urged in response to subsequent rapid changes in the technology and practices of communications.

Recommended Citation

Sarah Salter, Storage and Privacy in the Cloud: Enduring Access to Ephemeral Messages, 32 UC Law SF Comm. & Ent. L.J. 365 (2010).
Available at: https://repository.uclawsf.edu/hastings_comm_ent_law_journal/vol32/iss3/2