In addition, Congress need not limit itself to addressing the particular question raised by
this case. The SCA was adopted in 1986, at a time when the kinds of services provided by
“remote computing services” were not remotely as extensive and complex as those provided
today, and when the economic and security concerns presented by such services were not
remotely as important as they are now. More than a dozen years ago, a leading commentator
was expressing the need to reform the Act. See Kerr, A User’s Guide, supra, at 1233–42. It
would seem to make sense to revisit, among other aspects of the statute, whether various
distinctions, such as those between communications stored within the last 180 days and those
that have been held longer, between electronic communication services and remote computing
services, or between disclosures sought with or without notice to the customer, should be given
the degree of significance that the Act accords them in determining the level of privacy
protection it provides, or whether other factors should play some role in that determination.8
Congress has, in the past, proven adept at adopting rules for adapting the basic
requirements of the Fourth Amendment to new technologies. The wiretapping provisions of
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–22, for
example, proved to be a remarkably stable and effective structure for dealing with the privacy
and law enforcement issues raised by electronic surveillance in the telephone era. More recently,
8
As the Court notes, Majority Op. at 28 n.23, the House of Representatives recently
passed a bill amending the SCA’s required disclosure provisions. Email Privacy Act, H.R. 699,
114th Cong. § 3 (2016). That bill would require the government to obtain a warrant before it can
compel the disclosure of the contents of any electronic communication “stored, held, or
maintained” by either an electronic communication service or (under certain circumstances) a
remote computing service, no matter the length of the period of storage. Id. It does not,
however, address those provisions’ extraterritorial reach or significantly modernize the statute’s
structure. See Kerr, The Next Generation, supra, at 386–89 (criticizing a proposal similar to the
Email Privacy Act for “work[ing] within [the SCA’s] outdated framework”). As of this writing,
the Senate has not taken any action on the bill.
19
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