| Sumario: | The Stored Communications Act, 18 U.S.C. §2703, enacted in 1986, represents Congress' attempt to strike a fair balance between the privacy rights of individuals who have entrusted the contents of their electronic communications to Internet service providers and the government's legitimate interest in gaining access to such communications when investigating crimes. For over two decades, courts have relied on the Act to define the limits of online privacy, and have generally avoided tricky constitutional questions about the extent to which an e-mail's author, or recipient, should retain Fourth Amendment protection for copies of the e-mail retained on their ISP's server. To the extent scholars have debated the merits of the Act, they- too have focused largely on whether it sufficiently protects e-mail correspondents and blgggers from the prying eyes of the government. This Article, however, explores an overlooked but increasingly prominent Stored Communications Act issue—the Act's restrictions on ISP disclosures to criminal defendants and civil litigants. At present, the Act places an absolute bar on ISP disclosures of the contents of communications in electronic storage to private parties. Accordingly, in cases where e-mail contents may only support a defense (and thus the government has no motivation to seek their disclosure), a criminal defendant may have no ability to compel disclosure of potentially exculpatory evidence in the hands of a third-party. As the cache of online evidence continues to expand, criminal defendants are beginning to discover that the Stored Communications Act may have created an uneven playing field. This Article explores how this uneven playing field came to exist, how it affects both criminal and civil cases, and how it may have constitutional implications. Finally, the authors propose a simple amendment to the Stored Communications Act that would fill this gap, and ensure the Act's continued role as the preeminent arbiter of rights to remotely stored electronic content. Reprinted by permission of the publisher.
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