Experts say wiretap law needs update for digital age

The law that governs when the government can intercept digital communications is outdated and badly in need of an update, a panel of experts told lawmakers on Thursday.

At a hearing in front of the House Subcommittee on Constitution, Civil Rights and Civil Liberties witnesses said Congress needs to update the 1986 Electronic Communications Privacy Act (ECPA), which protects citizens' electronic communications while in transit. Witnesses said the existing law doesn't address location-based mobile services and other newer technologies.

U.S. Magistrate Stephen Smith of the Southern District of Texas said the current law is overly secretive because warrants for wiretaps and other communications intercepts are often sealed for years after they are issued. Smith said the brunt of that secrecy is borne by people who are never charged with a crime but have the misfortune to contact someone whose communications are being monitored.

Michael Amarosa, senior vice president of TruePosition, which provides location services to first responders, said there are instances when having access to the location information for a cell phone call can save lives. For example, 911 dispatchers have access to address information for most landline callers, but not for calls that come from mobile phones.

"Relying on the caller to provide the location for directing emergency response is fraught with risk," Amarosa said in his opening statement. "The delay associated with determining where the individual is stifles and often precludes determining even what the emergency is."

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 phones.

"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.