Didwania on Privacy Amid Prosecution

Vikas Didwania (University of Chicago Law School and U.S. Attorney’s Office) has posted “Privacy Amid Prosecution” on SSRN. Here is the abstract:

Prosecutors increasingly marshal electronic evidence from social media companies like Facebook and Twitter to detect and prosecute crime. For example, today’s prosecutors use social media communications to establish a defendant’s illegal activities online or his relationship to co-conspirators. Under the federal Stored Communications Act, the government is able to obtain electronic evidence by serving social media companies with a search warrant. The same is not true for criminal defendants because, on its face, the Act bans litigants other than the government from subpoenaing social media companies to obtain content information. As electronic evidence becomes more important in criminal prosecutions, defendants have sought to challenge this ban. To date, at least six federal and state appellate courts have confronted the question of whether litigants other than the government can compel service providers to produce content information.

The stakes are high. On the one hand, a decision giving access to criminal defendants and other litigants would open up for discovery the most intimate online communications, photographs, videos, and other content belonging to billions of users worldwide. On the other hand, a decision blocking access means defendants may not be able to obtain the evidence they need as they fight for their liberty. The Supreme Court is likely to soon be asked to address this question.

Criminal defendants have been aided by a scholar who has put forward in the Harvard Law Review an innovative argument that federal privilege law requires allowing litigants to subpoena information from social media companies in a way that the text of the Stored Communications Act appears to preclude. This Article challenges this novel privilege argument. Cases dating back to the telegram era of the late nineteenth century and continuing to modern day show that, contrary to this scholar’s argument, Congress does not have to use any specific language to block defendants’ access to content. Rather, courts have applied the plain text of the law, which, alongside the Act’s structure and purpose, shows that defendants are banned from obtaining content. Moreover, I argue, courts should not rely on this new approach because it will both create a doctrinal mess in a carefully structured statute and will enmesh courts in difficult policy decisions about the privacy of billions of users worldwide. Instead, Congress is best-positioned to reform the statute in a way that balances the serious privacy and liberty interests at stake. Given that legislative change can take time, this Article ends by explaining the tools already available to defendants for obtaining online content.