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You're not wrong, but you've missed the main distinguishing factor between the Third Party Doctrine and the ECPA. ECPA is about unauthorised access (think tapp
by kelnage 7y ago
You're not wrong, but you've missed the main distinguishing factor between the Third Party Doctrine and the ECPA.
ECPA is about unauthorised access (think tapping a phone line, but for the digital age) to electronic communications/cloud data. The Third-Party Doctrine is explicitly about the Government requesting these records - thus they would do not fall under "unauthorised access" in the sense used under the ECPA. Basically they cover two completely different situations.
- randomperson1 7y agoI think rgbrenner's point about the ECPA is actually on point in response to the "IIRC this also comes into play when your email messages are hosted on a 3rd party server that you do not own." comment. The ECPA isn't just about unauthorized access. It also has provisions, such as the Stored Communications Act (a subset of the ECPA), that apply to the 3P situation you described where "Government request[s] these records." For example, 18 U.S.C. 2703(a) (titled "Required disclosure of customer communications or records") reads "[a] governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in ..." In response to the original comment, the State's position that "it could warrantlessly get cell phone location data to find anyone, anytime, at any place as long as it was less than six hours old" was in part based on a previous Supreme Court case, Carpenter v. United States. Carpenter concerned federal prosecutors' attempts to get CSLI information using a court order pursuant to the Stored Communications Act -- 18 U.S.C. 2703(d).