Six Lines

Communications Privacy in Tennessee

Posted by Aaron Massey on 27 Jun 2011.

Tim Lee wrote about a new law in Tennessee that affects communications privacy over on Ars Technica. Most of the article deals with the First Amendment issues, but there’s an interesting development for communications privacy near the end of the article:

Another provision of the legislation governs law enforcement access to the contents of communications on social networking sites. The government can get access to “images or communications” posted to a social networking site by offering “specific and articulable facts,” suggesting that the information sought is “relevant and material to an ongoing criminal investigation.”

This section, too, faces constitutional problems. Julian Sanchez, a privacy scholar at the Cato Institute, tells Ars that “this is a lower standard than the federal Electronic Communications Privacy Act requires” for unread communications. More importantly, because Tennessee is in the Sixth Circuit, it is bound by that court’s Warshak decision, which held that the Fourth Amendment requires the government to obtain a full search warrant in order to access e-mail communications. “That case dealt with e-mail,” Sanchez said, “but there’s no good reason to think a private message on a social network site is any different.”

Electronic communications privacy continues to be under-protected from law enforcement access. The standard described by this law is stunningly low.