Twentieth-Century Laws for 21st-Century Tech

The Electronic Communications Privacy Act (ECPA) is part of the U.S. code that was enacted in 1986 with the stated goal of striking a balance between privacy rights associated with new forms of electronic communication and the need for law enforcement to have the tools necessary to do their jobs effectively. Though it may have been avant garde for its time, this law is now out of date and hopelessly out of touch with the realities of computing in the internet age.

Digital Due Process (DDP) is a coalition of major online entities, privacy advocates, educational institutions, etc., that have a common objective:

To simplify, clarify, and unify the ECPA standards, providing stronger privacy protections for communications and associated data in response to changes in technology and new services and usage patterns, while preserving the legal tools necessary for government agencies to enforce the laws, respond to emergency circumstances, and protect the public.

Prominent members include Amazon, AOL, Google, HP, IBM, Intel, and Microsoft. The Electronic Frontier Foundation (EFF) is also on board with this initiative, as are a score of law schools across the United States. DDP seeks to modify and balance privacy laws to make sure they are compatible with today’s technological reality.

Though DDP’s individual members may have slightly varying stances on the right direction for the ECPA, they all agree on the following four principles:

1) Law enforcement should have to obtain a warrant based on probable cause before it can demand that a service provider turn over a customer’s private data.

Currently, the law allows police and other law enforcement to demand access – without a warrant – to people’s emails that have been in storage for more than 180 days. A simple court-ordered subpoena is sufficient to order a service provider like Hotmail or Gmail to hand over your private emails, provided that they’ve been in your inbox (or sent messages, for that matter) for six months or more. The DDP sees this as too low a standard considering people’s privacy is at stake.

Law enforcement has never before had access to technologies that would enable such tracking of individuals. Does the simple fact that the technology and application now exist justify the use of those technologies? Contrary to the views of the Justice Department, DDP does not believe so.

When it comes to compelling a service provider to hand over private information, a major victory in favour of mandatory warrants came in the case of United States vs. Warshak: The U.S. Court of Appeals for the Sixth Circuit held that forcing an internet service provider to hand over private data without a warrant is unconstitutional on the grounds that it breaches the Fourth Amendment. The court ruled that people are entitled to the reasonable expectation of privacy relating to their emails, even though they are stored on a third-party’s server.

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Source: The Mark