Neither a Customer Nor a Subscriber Be : Regulating the Release of User Information on the World Wide Web

The Stored Communications Act (SCA) was passed in 1986 to regulate information release on the developing Internet. Twenty years later, while the quantity and quality of information collected online has grown, the amount that is regulated by the SCA is increasingly uncertain. Although the SCA was not intended to be “a catch-all statute designed to protect the privacy of stored Internet communications,” it has been pressed into this role. Without the SCA to balance the interests of users, law enforcement, and private industry, communications will be subjected to a tug-of-war between the private companies that transmit them and the government agencies that seek to access them. Internet users will find themselves with little protection. The flaws of the SCA’s regulation of electronic communications today have been discussed and analyzed at length, but one danger in particular has received little attention. The SCA largely regulates information “pertaining to a subscriber to or customer of” a covered information service. Although two decades ago virtually all user-service relationships fit within this model, today it may leave many Internet relationships uncovered. For example, search engines gather vast troves of information about their users - users who do not pay for, and often do not subscribe to, their services. This Comment briefly summarizes the history and structure of the SCA. It then examines the statutory meaning of “subscriber to or customer of,” and the dangers posed by the Act’s continued reliance on this terminology. It both identifies a specific, concrete weakness in the Act’s structure and illustrates the danger of applying a statute written for 1986 technology to the modern Internet. Finally, it proposes a legislative solution. Whether the Act is overhauled or simply amended, it should be broadened to regulate all “user” information held by covered services. This will help ensure that the SCA remains an appropriate balance of interests on the Internet today