Computers, Privacy & the Constitution

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SethGlickmanFirstPaper 4 - 12 Mar 2021 - Main.SethGlickman
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.

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ECPA Title II

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<		Congress took note of this disparity and attempted to address it with the 1986 passage of ECPA, which contained the Stored Communications Act (SCA) under Title II. The SCA sought to bring the heightened threshold of the search warrant to “stored wire and electronic communications and transactional records”(1). It covers two types of services: “electronic communication services” (ECS) and “remote computing services” (RCS). The line between the two can be counterintuitive: for example, a server containing email over 180 days old qualifies as “providing storage” and therefore RCS; if it has been held for 180 days or less it qualifies as ECS — unless an email has been opened, in which case it likely reverts to a classification of storage rather than communication, and therefore RCS.

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1 : 18 U.S.C. §§ 2701–2712

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>		Congress took note of this disparity and attempted to address it with the 1986 passage of ECPA, which contained the Stored Communications Act (SCA) under Title II. The SCA sought to bring the heightened threshold of the search warrant to “stored wire and electronic communications and transactional records”(2). It covers two types of services: “electronic communication services” (ECS) and “remote computing services” (RCS). The line between the two can be counterintuitive: for example, a server containing email over 180 days old qualifies as “providing storage” and therefore RCS; if it has been held for 180 days or less it qualifies as ECS — unless an email has been opened, in which case it likely reverts to a classification of storage rather than communication, and therefore RCS.
 Again, this distinction matters due to the retrieval mechanism: RCS-classified data production can be compelled via a subpoena combined with prior notice (and prior notice can be delayed for up to 90 days if it would jeopardize an investigation(3)), a far lower threshold than a search warrant.

The SCA, while a step in the right direction, is subject to two issues: (1) it can be altered by Congress at a later date through the normal course of legislation, and (2) it has large gaps which have only grown wider since 1986.

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3 : 18 U.S.C. § 2705

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Home is Where the Heart is: Your Data Should Live in Your House

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Home: Where Your Data's Heart is

 
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>		Amending the SCA to require search warrants for more types of electronic third-party data would be helpful, but it requires a willing Congress. Instead, we should look at taking matters into our own hands, and re-defining the location of where our data is stored to align with the location-focused language of the Fourth Amendment.

Here we must find a balance between the fundamental conveniences that third-party services like Google Docs or Dropbox provide and a structure which might provide an individual using the services with Fourth Amendment protections to their data contained in the service.

In the 1948 case _In re Subpoena Duces Tecum_(4), a subpoena of one partner to produce documents involving the other partners was successfully quashed, and this remains good law(5). I propose setting up these cloud services as partnerships with their users.

In this proposal, rather than using a company like Dropbox, you would instead create a service which added users on as partners when they joined to upload and share their documents (or whatever other service you are looking to provide). This partnership service would be distributed on a franchise-style model for scalability purposes - the franchisee would gain access to the source code and be able to run their own instance of the service with a different set of partners.

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4 : 81 F.Supp. 418

5 : See, e.g., Crop Associates-1986 v. C.I.R., 2000 WL 976792 (2000)

 


Revision 4r4 - 12 Mar 2021 - 20:09:25 - SethGlickman
Revision 3r3 - 12 Mar 2021 - 17:36:20 - SethGlickman
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