CDT Amici Curiae Brief in Hately v Watts

In 1986, Congress enacted the Electronic Communications Privacy Act (“ECPA”), including its Title II, the Stored Communications Act (“SCA”), to protect electronic communications from unauthorized access, and to extend Fourth Amendment-like privacy protections to electronic communications held by third-party service providers. Three decades later, these electronic communications—such as email, text messaging, and social media messaging—have become a ubiquitous part of everyday life, and these privacy protections are more important than ever.

However, the district court’s decision in this case would strip these communications of the protections of ECPA and the SCA as soon as they are opened. Paradoxically, spam and other unwanted, unopened messages would retain these vital privacy protections, while the most intimate and important personal communications would no longer enjoy SCA protections against unauthorized access by individuals, the government, and other entities. Furthermore, because other circuits have correctly held that opening an electronic communication does not deprive it of the protections of ECPA and the SCA, affirming the district court’s decision would provide electronic communications with different levels of protection in different states, and as people travel between states, undermining the fundamental purpose of ECPA and the SCA. Accordingly, this Court should reverse the district court’s summary judgment that, because they had been opened, the emails in this case were not “in electronic storage” for the purposes of the SCA.


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