How Private Is Facebook Under the SCA?

Courts struggle with social networking access questions under 1986 Stored Communications Act

By giving people the power to share, we're making the world more transparent.

-- Mark Zuckerberg, co-founder of Facebook at age 19

Some six years and 500 million users later, the Facebook experiment has become a model of modern global communication and information sharing. His best intentions aside, however, the transparency Zuckerberg envisioned still meets the occasional roadblock, including from legislation that could not have fully contemplated the scope of the social media explosion of the 21st century.

In 1986, Congress passed the Stored Communications Act as part of the Electronic Communications Privacy Act to address privacy issues attendant to the advent of the internet. Through the SCA, Congress intended to restrict disclosure of private communications by providers of electronic communications services.

However, when Congress passed the SCA, the internet was in its infancy. The few networks available to consumers, such as Prodigy and America Online, were self-contained, and most people had never heard of the term e-mail, let alone utilized the limited form of electronic messaging that existed at the time. The World Wide Web did not yet exist, and it would be nearly a decade before the introduction of the web browser in the mid-1990s.

The two students who would later attend Stanford and embark on a research project that would eventually morph into the now ubiquitous Google were just entering their teenage years, and social networking sites, such as Facebook and MySpace, were the stuff of imagination.

Despite huge technological advancements in the 25 years since passage of the SCA, and the ever increasing prominence of electronic communication in our society, Congress has not amended the SCA to keep pace with changing technology. Rather, courts have had to lead the charge in applying the decades old statute to modern internet technology and electronic communication disclosure issues.

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Source: law.com
By: Mark S. Sidoti, Philip J. Duffy and Paul E. Asfendis