Aspatore Press, an imprint of Thomson/Reuters, has published Understanding Developments in Cyberspace Law: Leading Lawyers Examining Privacy Issues, Addressing Security Concerns, and Responding to Recent IT Trends(whew!), part of Aspatore’s Inside the Minds series. Rick contributed a chapter on the Stored Communications Act, “Overlapping Public and Private Spheres in Cyberspace: Fear, Exhilaration, the Internet and the Stored Communications Act.” Rick’s main thesis is that, when we consider the problem of balancing privacy and commercial interests in cyberspace, the fundamental issue is cyberspace forces us to confront the public parts of our lives that relate to our private business (e.g., where we shop, who are friends are, what products we like, where we go, and so forth), and there is no consensus how to treat that space (and the public-private dichotomy is unhelpful). This public-private space has always existed, but cyberspace–in particular its ability to track and remember details about our private business–has made this space decidedly uncomfortable. Until there is consensus on this issue, attempts produce a comprehensive set of rules to govern online privacy are doomed. Until then, we’ll have to live with outdated, highly technical statutes like the Stored Communications Act, a forward-looking, noble act of Congress that was completely blindsided by the advent of the World Wide Web within five years of its passage. Several problems with our current understanding of the statute can be solved if we can just remember the state of cyberspace as it existed at passage of the SCA, where electronic bulletin boards were really proto-ISPs, not everyone could access the internet, and email could take days to reach its destination. As technical and esoteric as the Act may be, the results of its interpretation are by no means purely academic: Rick finally recounts the struggles of a federal judge to figure out whether posts to a Facebook “wall” are covered by the Stored Communications Act and are thus not subject to civil subpoena.
The book can be purchased here, but at least check there was only one left in stock(!), and since the books are admittedly pricey, we may be able to lend one to you. And we are happy to discuss questions of online privacy and the Stored Communications Act, and what it all might mean for your business.