Fourth Amendment.” Gov’t Br. at 29 (citing S. Comm. on Judiciary, Electronic
Communications Privacy Act of 1986, S. Rep. No. 99‐541, at 5 (1986)). The SCA
provides privacy protection for users of two types of electronic services—electronic
communication services (“ECS”) and remote computing services (“RCS”)—then
probably more distinguishable than now.13 See Orin S. Kerr, A User’s Guide to the Stored
Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208,
1213–14 (2004). An ECS generally operated by providing the user access to a central
computer system through which to send electronic messages over telephone lines.
S. Rep. No. 99‐541, at 8. If the intended recipient also subscribed to the service, the
provider temporarily stored the message in the recipient’s electronic “mail box” until
the recipient “call[ed] the company to retrieve its mail.” Id. If the intended recipient
was not a subscriber, the service provider could print the communication on paper and
complete delivery by postal service or courier. Id.; U.S. Congress, Office of Technology
Assessment, OTA‐CIT‐293, Federal Government Information Technology: Electronic
Surveillance and Civil Liberties 47–48 (1985).14 An RCS generally operated either by
providing customers with access to computer processing facilities in a “time‐sharing
arrangement,” or by directly processing data that a customer transmitted electronically
to the provider by means of electronic communications, and transmitting back the
requested results of particular operations. S. Rep. No. 99‐541, at 10–11. We will refer to
See 18 U.S.C. § 2510(15) (in ECPA Title I, defining “electronic communications service” as
“any service which provides to users thereof the ability to send or receive wire or electronic
communications”); § 2711(2) (in ECPA Title II, the SCA, defining “remote computing service” as
“the provision to the public of computer storage or processing services by means of an
electronic communications system”).
14 For example, in 1984, Federal Express entered the e‐mail market with a service that provided
for two‐hour delivery of facsimile copies of e‐mail messages up to five pages in length. U.S.
Congress, Office of Technology Assessment, Electronic Surveillance and Civil Liberties, at 47.
13
15
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