Appealing to Reason-able Expectations of Privacy: Increasing Appellate Review Under ECPA
Andrew Tyler Ohlert
Volume 66, Issue 6, 1731-68
The Snowden revelations of 2013 sparked widespread, public discussion about the amount of government surveillance performed on American citizens under the Foreign Intelligence Surveillance Act. This dialogue often sidesteps the Electronic Communications Privacy Act, however, which is the primary statute that governs the government’s ability to obtain the electronic communications of everyday citizens. The vast majority of requests for information under ECPA are pursued ex parte, and often without notice to a targeted individual that the government has obtained her information. This secrecy regime leaves targeted individuals unable to oppose the government or appeal adverse decisions. Moreover, if a magistrate judge disagrees with the government and denies its request for an individual’s information, the government can simply apply to other judges until a judge grants access to the information.
This Note examines the resulting lack of appellate precedent that has developed from a system where the government has no opposition, and American citizens have no opportunity to be heard. This Note suggests three solutions to increase opposition to the government and incentivize the development of binding, appellate precedent under ECPA.