Surveilling and Then Shooting the Messenger: Intermediaries, Gag Orders, and the First Amendment

In the context of domestic criminal surveillance, law enforcement agencies have historically relied on the practice of obtaining user information from traditional third-party intermediaries in order to uncover incriminating evidence on their true targets. For decades, those intermediaries were phone companies, and the actual targets were the individuals who used those companies’ services to communicate. Over time, this practice, which implicates both privacy and speech rights, has become more prevalent—and arguably more problematic—in the online world, where there are now a growing number of intermediaries collecting staggering amounts and kinds of user information. But while it appears that the government can, at least for now, constitutionally access communications held by intermediaries without probable cause thanks to the Fourth Amendment’s controversial third-party doctrine, the Stored Communications Act (SCA), which was enacted in 1986, attempts to restore by statute certain protections to individuals’ right to privacy in their electronic communications.

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