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Electronic Communications Privacy Act is Outdated: U.S. Gov’t Can Read Emails Without Warrant

Oct 21, 2011

25 years ago today, the U.S. government signed the Electronic Communications Privacy Act (ECPA) was signed into law. But it didn’t foresee a world interconnected by personal computers, the internet, smart phones and social media like Facebook. The U.S. government must update it for the digital age. 

internet2 Electronic Communications Privacy Act is Outdated: U.S. Govt Can Read Emails Without Warrant

On October 21, 1986, the United States Congress passed into law the Electronic Communications Privacy Act (ECPA), which extended federal restrictions on government wiretaps from telephones to computer communications. 25 years later, the world runs on personal computers, the internet, smart phones, and people communicate largely through email and social media and the law is sorely out of date.

One of the chief concerns is that the authorities do not need to seek a warrant to read a person’s email, as it is not addressed under the 1986 version of ECPA. The ACLU is right on in stating, “This extraordinary power is an egregious violation of the privacy Americans rightly expect.”

In 1986, no one could have foreseen the introduction of the world wide web and the explosion in its use in the ’90s and thereafter. And then, of course, following 9/11, an already quite limited ECPA was further weakened by provisions in the Patriot Act.

As Susan Freiwald, a University of San Francisco School of Law professor and electronic surveillance law expert, stated in a New York Times article in January 2011, “Some people think Congress did a pretty good job in 1986 seeing the future, but that was before the World Wide Web… The law can’t be expected to keep up without amendments.”

The ACLU writes, “The outdated Electronic Communications Privacy Act (ECPA) is allowing the government to engage in a shopping spree in the treasure trove of information about who you are, where you go, and what you do, that is being collected by cell phone providers, search engines, social networking sites, and other websites every day.”

Naturally, this is a concern for all citizens no matter one’s political ideology.

To join the ACLU’s effort to get Congress to update EPCA for our current times, head over to the ACLU website. Below are the following changes being demanded by the organization.

Robustly Protect All Personal Electronic Information. Current loopholes in our privacy laws must be closed to ensure that electronic information, including most transactional communications, receives full warrant protection regardless of their age or nature.

Safeguard Location Information.Location as transmitted by my cell phone is clearly personal information. Government officials should have to obtain a warrant based on probable cause before accessing it.

Institute Appropriate Oversight and Reporting Requirements. Existing reporting requirements for wiretap orders must be extended to all types of law enforcement surveillance requests.

Require a Suppression Remedy. The same rules should apply for electronic and non-electronic information; if it’s illegally obtained it should not be used against an individual in court.

Craft Reasonable Exceptions. Records should only be viewed in a true emergency with informed consent and proper notice.

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