Academic journal article Boston University Law Review

Compulsion of Text Messages after Quon: Applying Old Law to New Technology

Academic journal article Boston University Law Review

Compulsion of Text Messages after Quon: Applying Old Law to New Technology

Article excerpt


Congress enacted Title II of the Electronic Communications Privacy Act of 1986 (ECPA), now known as the Stored Communications Act (SCA),1 five years after the Federal Communications Commission first approved the use of cell phones.2 In passing the SCA, Congress responded to calls for reform following massive and sudden changes in communications technology.3 The House committee report accompanying the legislation specifically emphasized these burgeoning tools: "Today, we have large-scale electronic mail operations, cellular and cordless telephones, paging devices, miniaturized transmitters for radio surveillance, and a dazzling array of digitized information networks which were little more than concepts two decades ago."4

Now, twenty-six years after Congress enacted the SCA, these technologies are commonplace, or even obsolete in some cases; cell phone ownership has ballooned in the past two decades, and paging has been all but replaced by text messaging.5 Even so, the 1986 SCA still governs how telecommunications providers may release text messages to third parties or the federal government.6 The federal government uses the SCA frequently, as evidenced by the 4601 requests for user data received by Google in just six months.7 As the primary law enforcement agency of the federal government, the Department of Justice (DOJ) often uses the SCA in investigations and prosecutions throughout the country.8 The DOJ has thus developed a strong understanding of the SCA borne out of its extensive experience with the statute.9

Despite the DOJ's understanding and expertise, the United States Court of Appeals for the Ninth Circuit fundamentally disagreed with the DOJ's functional interpretation of the SCA in Quon v. Arch Wireless Operating Co.10 The Ninth Circuit disagreed not only as to how text message technology fits within the statute but also as to how the statute operates in general. On appeal, the Supreme Court reviewed the Fourth Amendment portion of the Ninth Circuit's decision, but it denied certiorari as to the SCA issue.11 Therefore, the Ninth Circuit's interpretation of the SCA is still good law.

Even before Quon, legal scholars, courts, and legislators had tried to untangle the language of the SCA and apply it to controversies, but to no avail.12 Technological advancements such as the advent of text messaging technology have contributed to confusion and uncertainty about how to properly interpret the statute. The lack of cases explaining the operation of the statute compounds this confusion.13 Although technology has changed dramatically, Congress's unwillingness or inability to update the statute, combined with concerns about privacy protection and uncertainty, has prompted many groups to vigorously call for reform.14 Critics specifically target ECPA and the SCA because these laws mandate the procedures for disclosure of content of electronic communications to the government.15 Until Congress takes action, the government, courts, and industry are all stuck applying this antiquated law to new technologies.

Since Quon, commentators have written about the implications of the Ninth Circuit's decision; none, however, have sought to resolve the competing interpretations of the Ninth Circuit and the DOJ.16 This Note argues that while the Ninth Circuit's interpretation of the SCA is simpler to apply, the DOJ's interpretation better follows the text of the statute while preserving the balance Congress struck between the competing goals of ensuring prosecutorial effectiveness and protecting individual privacy. Further, this Note will show not only that the DOJ interpretation is correct but also that when understood in the context of text messaging technology, the Ninth Circuit's interpretation is unworkable. To accomplish this, Part I provides an overview of text messaging technology. Part II provides an overview of the statutory framework and the DOJ and Ninth Circuit interpretations. Part III, through statutory analysis and an application of current technology, shows the merits of the DOJ's interpretation. …

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