Katherine on Tapp: Check out her recent blog post!

Understanding the Stored Communications and Wiretap Acts


The Stored Communications Act (“SCA”) and the Wiretap Act are two important pieces of legislation that govern the interception and disclosure of electronic communications. While both acts relate to electronic communications, they operate in slightly different ways.

The SCA was passed in 1986 as part of the Electronic Communications Privacy Act. It governs the disclosure of stored electronic communications by certain types of communication service providers, such as internet service providers and email providers. Under the SCA, law enforcement agencies can obtain stored communications with a warrant or court order, but only under specific circumstances. For example, the government must demonstrate probable cause that the information sought is relevant to an ongoing criminal investigation.

The Wiretap Act, on the other hand, regulates real-time interceptions of electronic communications, including telephone conversations and electronic messages. It requires law enforcement to obtain a court order before intercepting any electronic communication, and also imposes strict limitations on what can be intercepted and how it can be used. The law also prohibits wiretapping for purposes other than the prevention of serious crime, such as terrorism or espionage.

Overall, while both acts regulate electronic communications, they differ in their scope and requirements. The SCA applies to stored electronic communications and allows law enforcement to obtain these communications with a warrant or court order. The Wiretap Act regulates real-time interceptions of electronic communications, and requires law enforcement to obtain a court order before intercepting any electronic communication.

In the context of civil litigation, these acts can often come into play when parties seek to obtain electronic communications or information as evidence.

Under the SCA, a party may seek to obtain stored electronic communications, such as emails or text messages, that are relevant and material to their case. However, the act imposes strict requirements on how this information can be obtained, including the need for a court order. Additionally, the act provides civil remedies for individuals whose rights have been violated under the act.

Similarly, the Wiretap Act can also arise in the context of civil litigation, particularly in cases involving allegations of privacy violations or illegal interception of communications. The Act imposes strict limitations on when and how electronic communications can be intercepted, and provides civil remedies for individuals whose rights have been violated.

The SCA and Wiretap Act apply to both governmental entities and private individuals and companies. There have been several high-profile cases in which the government has been accused of violating these laws, such as the NSA’s bulk collection of phone metadata and the FBI’s use of “pen registers” to track online activity. In these cases, the government has typically argued that its actions were justified by national security concerns or other legitimate interests.

However, courts have generally taken a strict approach to interpreting these laws and have held that the government must comply with their requirements just like anyone else. For example, in a recent case involving the use of cell-site simulators (also known as “Stingrays”) by local law enforcement, a federal court ruled that the use of these devices was a “search” under the Fourth Amendment and required a warrant.

So, while the government does have certain powers and responsibilities when it comes to national security and law enforcement, it is not exempt from the privacy protections afforded by the Stored Communications Act and Wiretap Act. If a governmental entity violates these laws, it can be held liable for damages just like any other violator.

Leave a Reply

Your email address will not be published. Required fields are marked *

window.dataLayer = window.dataLayer || []; function gtag(){dataLayer.push(arguments);} gtag('js', new Date()); gtag('config', 'UA-111276824-1');