Secret Searches: The SCA’s Standing Conundrum
Aviv S. Halpern*
The Stored Communications Act (“SCA”) arms federal law enforcement agencies with the ability to use a special type of warrant to access users’ electronically stored communications. In some circumstances, SCA warrants can require service providers to bundle and produce a user’s electronically stored communications without ever disclosing the existence of the warrant to the individual user until charges are brought. Users that are charged will ultimately receive notice of the search after the fact through their legal proceedings. Users that are never charged, however, may never know that their communications were obtained and searched. This practice effectively makes the provisions of the SCA that allow for nondisclosure unreviewable by the judiciary. Users that were searched but not charged have standing to challenge the scope of these warrants, but receive no notice that the search occurred. Service providers receive notice but have no standing on behalf of their users under the Fourth Amendment. This Note argues that the nondisclosure orders, therefore, create a procedural due process violation in addition to a Fourth Amendment violation. Users may have their privacy and property interests infringed without a meaningful opportunity to be heard. Under a due process theory, as opposed to a Fourth Amendment theory, this practice can finally be judicially reviewed.
*J.D. Candidate, May 2019, University of Michigan Law School. Thank you to every Michigan Law Review editor who worked on this piece. Particular thanks to Michael Abrams, Ryan Marosy, Sarah Mezera, Jun Ha Park, and Carolina Velarde for being extraordinary editors, thoughtful contributors, and great friends. Finally, thank you to my fiancée, Noreen Raja, for the support and for convincing me to put aside my tinfoil hat long enough to research and
write this piece.