The Stored Communications Act and Digital Assets

This Article explores the impact of federal law on a state fiduciary\u27s management of digital assets. It focuses on the lessons from the Stored Communications Act ( SCA\u27), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment\u27s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account. While existing trusts and estates laws could legitimately be interpreted to encompass the new technologies, and while the laws applicable to these new technologies could be interpreted to account for wealth transfer, we are currently in a transition period. To fulfill their obligations, however, fiduciaries need certainty and uniformity. The article suggests reform to existing state and federal laws to ensure that nonprobate-focused federal laws ultimately effectuate the decedent\u27s intent. The lessons learned from examining the intersection of federal law focused on digital assets and of state fiduciary law extend more broadly to show the unintended consequences of other nonprobate-focused federal laws

Beware of Giant Tech Companies Bearing Jurisprudential Gifts

Responding to Rebecca Wexler, Privacy as Privilege: The Stored Communications Act and Internet Evidence, 134 HARV. L. REV. 2721 (2021)

Technology - Konop v. Hawaiian Airlines, Inc.

In Konop v. Hawaiian Airlines Inc., the United States Court of Appeals for the Ninth Circuit held that the unauthorized access of the content of a secure website is a violation of the Wiretap Act and the Stored Communications Act. This is the first case to determine whether unauthorized accessing of a secure private website is a violation of the Wiretap Act. This decision is contrary to an earlier decision by the Fifth Circuit in United. States v. Turk, which held that the Wiretap Act required contemporaneous transmission and acquisition of the communication. The Ninth Circuit concluded that the scope of protection under the Wiretap Act and the Stored Communications Act depends on the degree of intrusion, not on whether the communication is in transit or storage. Subsequently, content on a secure website is an electronic communication within the meaning of the Acts and is therefore protected from unlawful interception. The Ninth Circuit also concluded that defendant\u27s unlawful interception of the content on plaintiff\u27s secure website, followed by its disclosure to an opposing union faction and engagement in coercion and intimidation, raised a triable issue of fact, and remanded Konop\u27s claims under the Railway labor Act