The Electronic Communications Privacy Act, 18 U.S.C. §§2501 et seq., the Stored Communications Act, 18 U.S.C. §§2501 et seq. and their state law counterparts in Pennsylvania at, respectively, 18 Pa.C.S. §5701 et seq. and 18 Pa.C.S. §5741 et seq., are the federal and state laws that, inter alia, set forth what protections email and cellphone users have for their emails stored by Internet service providers, and records of email and cellphone connectivity and usage stored by ISPs and cellphone carriers. Changes in technology in the years since the creation of these laws have led to a cacophony of holdings and opinions by federal and state courts that interpret the same language completely differently, with the Supreme Court remaining silent on the issues.
Many of these contrary opinions have arisen because the courts have had to try to apply what, in cyberyears, are “ancient” laws, dating back to the 1980s and 1990s, to technology and usage never envisioned by the drafters. As a result, Congress has recently begun to try to make changes to the federal instances of these laws. In this month’s article, we will review the most prominent problems in the laws and ways to address them.
