Overview
A recent amicus brief filed by LGBT Tech, with the support of a coalition of LGBTQ+ advocacy organisations and legal counsel from McDermott Will & Emery, carries significant weight in ongoing jurisprudence regarding online privacy.
In Depth
The brief urges the California Supreme Court to overturn the Court of Appeal’s decision in Snap, Inc. v. The Superior Court of San Diego County, which would erode the protections of the Stored Communications Act (SCA). The California Court’s decision will determine whether hundreds of millions of social media users, including countless LGBTQ+ individuals, will continue to enjoy the privacy protections over their electronic communications set forth in the SCA.
The Importance of LGBTQ+ Advocacy for Online Privacy
The LGBTQ+ community utilises digital spaces at significantly higher rates than their peers. For many, online environments serve as vital conduits for community building, identity exploration, access to crucial support networks, and the acquisition of information, which is particularly important for those residing in unaccepting households. Weakening of online privacy safeguards would disproportionately impact this community, potentially severing these essential digital lifelines.
In addition to relying on online services at heightened rates, LGBTQ+ individuals may face amplified harms when their private data is exposed. Across the world, and within the United States, LGBTQ+ individuals remain susceptible to discrimination, harassment, and violence. The disclosure of sensitive online communications or personal affiliations could precipitate severe repercussions and discriminatory practices in critical domains such as housing, employment, and healthcare.
LGBTQ+ individuals may face amplified harms when their private data is exposed.
The SCA, which mandates warrants or court orders for the disclosure of stored electronic communications, functions as a crucial guardrail against such unwarranted intrusions and potential harms. It attempts to strike a careful balance between allowing for compelled and voluntary disclosures in the interests of public safety, and ensuring against overly broad or otherwise inappropriate disclosure. Importantly, the SCA safeguards operate to protect not only the individual user whose messages are subject to disclosure but also the numerous individuals with whom that person communicates. Weakening the SCA would pose significant risks to the privacy of all social media users.
Weakening the SCA would pose significant risks to the privacy of all social media users.
Global Effects of the Stored Communications Act
The SCA has long had significant global effects. While the United States has entered into co-operative agreements with countries around the world regarding the exchange of digital information in criminal matters, from Mutual Legal Assistance Treaties (MLATs) to Clarifying Lawful Overseas Use of Data Act (CLOUD) agreements, the SCA serves as the most critical barrier to foreign governments in their attempts to seek user information from US companies. As both a sword and shield, the SCA is particularly important for US companies seeking to guard user information against improper intrusion from foreign governments. In short, bi- or multi-lateral agreements with the United States strike the very careful balance of lifting the SCA’s barriers as to certain crimes, allowing access to digital information by certain countries, while the California Courts’ decision stands to take a much less targeted approach — putting all social media users, not just members of the LGBTQ+ community, at risk of having their personal communications disclosed.
Demonstrating a unified and powerful stance within the LGBTQ+ community on this critical issue, LGBT Tech was joined by a number of prominent LGBTQ+ advocacy organisations, including Bay Area Lawyers for Individual Freedom, Hacking the Workforce, the National Queer Asian Pacific Islander Alliance, the Trevor Project, and Advocates for Trans Equality.
