Now that the U.S. government has overturned the FCC’s privacy regulations, are courts more likely to step in to protect the Internet privacy rights of individuals?
More specifically, how will courts respond when an Internet Service Provider (ISP) divulges to law enforcement the content and details of a subscriber’s Internet activity without obtaining a search warrant, despite law enforcement having complied with the judicial process set forth in the Electronic Communications Privacy Act (ECPA), in particular, the Stored Communications Act (SCA). Will courts require a search warrant even though the SCA does not require one?
If the past is any indication, I anticipate that an increasing number of federal and state courts, when faced with this question, will find that individuals have a “reasonable expectation of privacy” in the content and details of their Internet activity and that they will prohibit the government from obtaining warrantless access to such information under applicable constitutional law. The constitutional law could