When it was enacted in 1986, the Electronic Communications Privacy Act (ECPA) reflected cutting-edge thinking about how to deal with a cutting-edge issue: the rules for government access to private electronic communications. But ECPA’s standards and the privacy safeguards they once provided have been outpaced by advances in technology and the new ways in which Americans use electronic communications.
When ECPA was adopted, for example, almost no one had access to email, and certainly, no one stored documents online “in the cloud.” Cellphones resembled shoebox-sized walkie-talkies and were considered a novelty, not a necessity. Not surprisingly, the rules created by ECPA make little sense when applied to today’s technology and the ways in which electronic communications are central to Americans’ lives. Thus, it is imperative that Congress push forward with efforts to reform and update the law.
Traditionally, law enforcement officers could only obtain Americans’ private documents if they went to court and obtained a search warrant. These Fourth Amendment safeguards continue to apply if you store your documents on your computer at home. However, if you store a document online “in the cloud,” or if your information is stored on your email server for more than 180 days, ECPA allows law enforcement to obtain that information by simply sending a subpoena to your Internet service provider — without any showing of probable cause.
The drafters of ECPA were simply unable to anticipate how we use electronic communications today. Indeed, ECPA’s widely varying treatment of email, based on how long it has been saved on a remote server, demonstrates just how out of date the law is: Older emails can be more easily accessed by the government than new emails. In 1986, people assumed that emails remaining on a server were forgotten or unwanted, and it made some sense to impart a higher level of protection to newer emails stored for fewer than 180 days. But today, with the nearly limitless storage capability that online services provide, the emails we save on the server are often the ones that are most important to us.
Similarly, advances in technology have converted every cellphone into a personal tracking device. With the increased use of mini cell towers, the rapid expansion of tower networks and cell tower location data growing increasingly accurate, such location information can often pinpoint an individual with great precision. However, under ECPA, law enforcement officers can acquire cellphone location information by simply issuing a subpoena to a service provider and without obtaining a search warrant or demonstrating probable cause to a judge.
To address these issues, The Constitution Project has joined the Digital Due Process Coalition, a diverse collection of more than 50 think tanks, privacy advocates and major technology companies including Google, AT&T and Facebook. The coalition has developed a clear set of principles to provide Americans with rigorous privacy protections, service providers with clarity, and law enforcement with the ability to conduct lawful, effective and efficient investigations. These principles for reforming ECPA are conservative ones — they are designed to safeguard fundamental constitutional rights and to provide clarity for businesses like technology companies and Internet service providers.
Specifically, ECPA must be amended to require that the government obtain a search warrant from a judge based on probable cause rather than a mere subpoena issued by a prosecutor before it can obtain Americans’ electronic communications. This warrant requirement should apply regardless of whether a user’s documents are stored on a home computer or online, and should apply to all private communications regardless of their age, such as text messages, emails and Internet search queries. Additionally, the government should not be permitted to track the location of a cellphone or other mobile communications device without first obtaining a warrant.
ECPA reflects communication methods of the past, and reform is necessary to update the law to safeguard adequately privacy in the digital age. As the government files more requests for data, Internet and technology companies find themselves caught in a confusing tug of war governed by unclear and inconsistent standards. The Digital Due Process Coalition seeks common-sense reforms that would ensure that information is afforded the same level of protection regardless of what form it is in, and that our cellphones are no longer tracking devices that permit the government to follow us without probable cause.
Hutchinson was undersecretary of Homeland Security under former President George W. Bush. Edwards served in the House of Representatives from 1977 to 1993. Both are members of The Constitution Project’s Liberty and Security Committee.