called into question the breadth of the protection to which electronic records and
communications might be entitled under the Fourth Amendment. See S. Rep. No. 99‐
541, at 3 (citing United States v. Miller, 425 U.S. 435 (1976), for proposition that because
records and private correspondence in computing context are “subject to control by a
third party computer operator, the information may be subject to no constitutional
privacy protection”); H.R. Rep. No. 99‐647, at 23 (citing Miller for proposition that
“under current law a subscriber or customer probably has very limited rights to assert
in connection with the disclosure of records held or maintained by remote computing
services”).
Accordingly, Congress set out to erect a set of statutory protections for stored
electronic communications. See S. Rep. No. 99‐541, at 3; H.R. Rep. No. 99‐647, at 19. In
regard to governmental access, Congress sought to ensure that the protections
traditionally afforded by the Fourth Amendment extended to the electronic forum. See
H.R. Rep. No. 99‐647, at 19 (“Additional legal protection is necessary to ensure the
continued vitality of the Fourth Amendment.”). It therefore modeled § 2703 after its
understanding of the scope of the Fourth Amendment. As the House Judiciary
Committee explained in its report, it appeared likely to the Committee that “the courts
would find that the parties to an e‐mail transmission have a ‘reasonable expectation of
privacy’ and that a warrant of some kind is required.” Id. at 22.
We believe this legislative history tends to confirm our view that the Act’s
privacy provisions were its impetus and focus. Although Congress did not overlook
law enforcement needs in formulating the statute, neither were those needs the primary
motivator for the enactment. See S. Rep. No. 99‐541, at 3 (in drafting SCA, Senate
Judiciary Committee sought “to protect privacy interests in personal and proprietary
information, while protecting the Government’s legitimate law enforcement needs”).
38
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