In 1986, the Electronic Communications Privacy Act (ECPA) was put into force by United States Congress. It covered, among other things, a person’s right to privacy when they used devices like computers, telephones or cell phones to communicate.
Basically, the ECPA stated that no form of electronic communication could be used in the accusation or conviction of a crime unless that communication was first obtained with a warrant.
The same is true when attempting to obtain a search warrant by eavesdropping on the types of communications mentioned above. In many cases, it is illegal to use any recorded conversation with a suspect in court without having notified the suspect that they were being recorded.
If It Wasn’t Broken, Why The Fix?
Things appeared to be going very well with the ECPA. That is, until questions began swirling about those companies who handle our data, such as internet providers and web email companies. Interestingly, it was a ruling made before the ECPA was ever formed. A 1979 case set a precedent that no American was protected by the Fourth Amendment as far as the privacy of their phone numbers was concerned. Basically, since we voluntarily share any number we dial with the phone company, they were not our property.
This principle was given the name of Third Party Doctrine, and essentially communicates that we have no reasonable expectation of privacy when we are conscious of the fact that we are sharing our data with communications providers.
The trouble started when the government took this ruling and then said the 1979 ruling could be applied to the data we share with service providers today. Of course, this makes little sense, considering the amount of data we shared with providers in 1979 and the amount of data we share with them now.
Updating the ECPA
Things looked frightening for awhile, almost as though our every move would be monitored by law enforcement whether we had done anything illegal or not. Thankfully, some courts are seeing things the same way, saying that we do, in fact, have a reasonable expectation of privacy where our email is concerned.
But the Department of Justice argues that it can access any electronic communications such as email without a warrant once 180 days has passed. This was identified as one of many loopholes in the ECPA, and one of many reasons why the act was updated to include modern technologies.
An Important First Step
It was near the end of 2012 that the Senate Judiciary Committee voted to force police officers to get a warrant if they wanted to review email communications. But how far their ruling will reach is, as yet, unclear.
A proposed ECPA amendment would see all emails being protected under the act, no matter if they were stored on a web email server or on our own hard drives. Not only that, but even files stored in cloud services like Google Drive would be protected from snooping.
Arguments About the Amendment
Some say that the proposed amendments, while beneficial for those wanting their files and emails kept private, would not do much to help those in other situations, such as when a child has been kidnapped. Those individuals argue that the law could result in important information in a kidnapped child’s accounts being missed.
While this may appear to be a feasible argument, the proposed amendment of exception in cases including violence against women and child abduction was voted down.
The People Speak
Global citizens are speaking out about the ECPA and the rights law enforcement has to the privacy of internet users everywhere. Online petitions can be signed, groups can be joined and other measures taken to let government know that there are limits to the amount of information gathering the public will allow.
The goal is to reach a level of reforms to the ECPA which don’t infringe on personal rights to privacy, but at the same time don’t prevent law enforcement from doing their jobs to the best of their ability.
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Guest author Jodi Grant writes on a variety of topics, particularly related to technology. She helps consumers locate internet services in their neighborhoods by providing a unique and simple methodology for comparing them online.
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