Our ever-increasing use of digital technologies has significantly affected how law enforcement agencies and courts interpret the Fourth Amendment’s guarantee of people’s right “to be secure in their persons, houses, papers, and effects.” For most of this nation’s history, an individual’s “papers and effects” only existed in physical form. Telephones, computers, mobile devices, and the internet have added a virtual component to the concept of “papers and effects,” and the extent of the Fourth Amendment’s protections with regard to an individual’s digital information and online activity is an ongoing debate. During the summer of 2016, the U.S. Senate narrowly voted down an effort to amend the Stored Communications Act (SCA), which regulates law enforcement access to various types of digital and telecommunications data. The proposed amendment would have expanded the FBI’s access, in certain circumstances, to “electronic communication transactional records” (ECTRs), a broad category of data that could include web browsing history.
Congress originally enacted the SCA, 18 U.S.C. § 2701 et seq., in 1986, as part of a larger bill known as the Electronic Communications Privacy Act. The law prohibits unauthorized access to various electronic communications and electronic systems, but it requires service providers to disclose information to the FBI for “counterintelligence” purposes. 18 U.S.C. § 2709. This information includes an individual’s “name, address, length of service, and local and long distance toll billing records.” Id.
The FBI must provide a certification to the service provider, commonly known as a national security letter (NSL), which identifies the individual for whom it is seeking records and states that the records “are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” Id. at § 2709(b). The service provider is not obligated to comply if the records sought “solely [involve] activities protected by the First Amendment to the Constitution of the United States.” Id. The service provider may not disclose the FBI’s request to any third party if the FBI determines that doing so would threaten national security or interfere with an ongoing investigation. Id. at § 2709(c).