Uncertain Privacy: Communication Attributes After The Digital Telephony Act

This article argues that the coming tide of electronic Federal law protects the privacy of transmitted communications under a two-tiered system. The actual contents of communications occupy the first tier, where they enjoy fairly effective protection against disclosure. Communication attributes encompass all of the other information that can be learned about a communication, such as when and where it occurred, to whom and from whom it was sent and how long it lasted. They occupy a lowly second tier, where the protections against disclosure are weak, ambiguous and in some cases non-existent. This bifurcated system becomes increasingly untenable as advances in communications technology such as the Internet expand both the range and quantity of communication attribute data. In this Article, Professor Freiwald explores the history of the two-tiered system, and its persistence after the recent passage of the Digital Telephony Act. She demonstrates that the Act's few provisions designed to improve the privacy of communication attributes will likely prove ineffectual due to their vagueness. Professor Freiwald argues that inadequate information prevents Congress from appreciating the threat to communication attributes and recommends steps to improve that problem. She also recommends that future legislation delineate exactly what information is to be protected, as in the Video Privacy Protection Act of 1988