Marc Zwillinger, an attorney who specializes in
electronic surveillance agreed the ECPA is badly in need of reform
because it doesn't clearly address law enforcement's ability to
continuously track an individual's location using data from their mobile
"With regard to this type of location data, ECPA’s statutory framework is profoundly unsatisfying," Zwillinger said. "It creates a different set of rules for historical and prospective location data, and it fails to provide clear guidance for situations in which the government seeks to track an individual’s precise movements, leaving the answer to the general application of Fourth Amendment principles and significant variation across jurisdictions."
Smith said any overhaul of ECPA should emphasize transparency and include clear outlines of what burden of proof is necessary to obtain various types of mobile data.
"Whatever the details, the guiding principles for EPCA reform should be brighter lines and more light," Smith said, adding that "complexity and secrecy take hidden tolls in the form of diminished privacy protection, unchecked judicial power and public confidence in the judicial system."
"The time is ripe for Congress to set forth clear and sustainable ground rules that balance user expectations and law enforcement needs," Zwillinger said.