Today Mozilla has joined an amicus brief in the California Supreme Court defending statutory privacy protections for messages on services such as Snapchat or Facebook. The amicus brief asks the court to overrule a lower court opinion that would significantly reduce the legal privacy protections for users of these widely used services. Mozilla is joined on the brief by the Electronic Frontier Foundation and the Center for Democracy and Technology.
Back in 1986, Congress passed a law called the Stored Communications Act (SCA) to provide privacy protections for stored electronic communications such as email. The SCA prohibits service providers from sharing private messages with the government or other third-parties without authorization. For example, it requires that the government must get a warrant to access recent communications (or at least a subpoena in other circumstances). In the years since 1986, it is fair to say we have developed many new forms of digital communication. Fortunately, the language of the SCA is sufficiently general (it uses the term “electronic communication service”) that courts have applied it to a large array of new products.
Unfortunately, a California court recently narrowed the scope of the SCA. In the case of Snap v. The Superior Court of San Diego County, the California Court of Appeal ruled that the SCA does not protect users of Snapchat and Facebook. The court concluded that the SCA does not apply because, in addition to facilitating transmission of messages and storing backups, these companies also maintain that content for their own business purposes such as targeted advertising. If upheld, this ruling would remove the SCA’s protection not just for users of Snap and Facebook, but for many other modern forms of communication.
While we may criticize some of Snap or Meta’s data practices, it would only compound the privacy harm to their users to hold that their privacy policies take them outside the scope of the SCA, with potential ramifications for the users of other services in the future. Our brief argues that this is both wrong on the law and bad policy. We hope the California Supreme Court will fix the lower court’s error and restore key statutory privacy protections to modern messaging services.
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