abstract. The Stored Communications Act (SCA) poses an increasing threat to criminal defendants’ constitutional rights. This Note offers the first comprehensive survey of existing appellate and federal court case law involving criminal defendants seeking access to evidence covered by the SCA. Using those findings, the Note analyzes statutory interpretations of the SCA that could allow criminal defendants to access the content of electronic communications. In cases where no such avenues are available to access exculpatory evidence, this Note concludes that the SCA’s restrictions on disclosure of the content of electronic communications violate criminal defendants’ constitutional rights under the Due Process Clause and the Sixth Amendment.

author. Yale Law School, J.D. 2021; University of King’s College/Dalhousie University, B.A. 2017. Thank you to Professor Tracey L. Meares for providing invaluable feedback on this project; to Professor Rebecca Wexler and Jerome D. Greco for sharing their incredibly helpful insights on this topic; and to Kate Hamilton, Joseph B. Linfield, Rachel V. Sommers, and all of the Yale Law Journal editors who worked on this piece for their thoughtful edits and comments. Finally, I thank Josh Feldman and my friends and family for their advice and support. Any errors are my own.

Introduction

In 2016, California resident Lance Touchstone drove to San Diego to visit his sister, Rebecca Touchstone.1 Rebecca lived with her boyfriend, Jeffrey Renteria. During the visit, Lance watched his sister’s boyfriend engage in increasingly strange behavior, which culminated in Jeffrey taking Rebecca’s personal firearms and threatening to harm both Lance and Rebecca. When Jeffrey finally burst into Rebecca’s house and lunged towards them, Lance shot him, inflicting nonfatal wounds. Lance immediately set aside his weapon and called 911.2

Lance was charged with attempted murder and faced a maximum of twenty-two years in state prison.3 He ultimately pled not guilty due to self-defense.4 To support his case, he attempted to obtain Facebook posts from Jeffrey’s account that included threats against his sister’s life.5 But the Stored Communications Act’s (SCA) bar on the disclosure of the contents of electronic communications prevented Lance from accessing this potentially crucial evidence.6 While the SCA has an exception that allows law enforcement to access the contents of electronic communications, there is no equivalent exception for criminal defendants.7 In cases like Lance’s, where law enforcement refuses to obtain information covered by the SCA, criminal defendants may have no way of accessing potentially exculpatory evidence.

Lance Touchstone is one of many criminal defendants impacted by privacy statutes that foreclose pathways for the defense to access information, while preserving such pathways for law enforcement.8 Focusing on the SCA, this Note outlines strategies for overcoming this inequity by either working around the statute’s prohibitions or working within its exceptions. In instances where neither route allows defendants to access exculpatory evidence, this Note argues that the SCA is unconstitutional as applied.

Part I of this Note outlines the importance of digital evidence and the structural challenges criminal defendants face in accessing it, including the “privacy asymmetries” studied by Rebecca Wexler.9 Part II focuses on the SCA as an example of a privacy asymmetry, given the differential access to covered content afforded to the prosecution compared to the defense, and provides an overview of the statute. Working within the current SCA regime, Part III offers litigation strategies that could allow defendants to overcome barriers to accessing crucial evidence, while explaining why they may not be available or effective in many cases. Section III.A outlines pathways to evidence criminal defendants could consider to steer clear of the SCA altogether: subpoenaing senders or recipients directly, cooperating with law enforcement to secure a warrant, or challenging the classification of the online platform at issue as a provider of electronic communication services (ECS) or remote computing services (RCS) as defined by the statute. Turning to cases where the evidence in question falls within the SCA’s coverage, Section III.B lays out the statutory exceptions criminal defendants can use to their advantage, including the exception for addressees or intended recipients and the exception for consent.

Finally, focusing on cases where such strategies within the current regime are not available, Part IV outlines how criminal defendants’ rights under the Due Process Clause and Sixth Amendment render the asymmetrical provisions of the SCA unconstitutional. Section IV.A outlines the application of due-process jurisprudence to a criminal defendant’s right to access content covered by the SCA, with a focus on arguments rooted in Brady10 and prosecutorial misconduct, Wardius11 and reciprocity requirements, and actual-innocence case law. Section IV.B discusses arguments grounded in the Sixth Amendment, including how a criminal defendant’s rights to confrontation and cross-examination, compulsory process, and effective assistance of counsel could be violated by the denial of content covered by the SCA.