Op-ed: Twenty-five years after it was passed, the Electronic Communications Privacy Act still governs much of our privacy online, and the Center for Democracy and Technology argues that ECPA needs an overhaul. The opinions in this post do not necessarily reflect the views of Ars Technica.

Cell phones the size of bricks, "portable" computers weighing 20 pounds, Ferris Bueller's Day Off, and the federal statute that lays down the rules for government monitoring of mobile phones and Internet traffic all have one thing in common: each is celebrating its 25th anniversary this year.

The Electronic Communications Privacy Act (ECPA) was signed into law on October 21, 1986. Although it was forward-looking at the time, ECPA’s privacy protections have remained stuck in the past while technology has raced ahead, providing us means of communication that not too long ago existed only in the minds of science fiction writers.

Citing ECPA, the government claims it can track your movements without having to get a warrant from a judge, using the signal your mobile phone silently sends out every few seconds. The government also claims it can read your e-mail and sneak a peek at your online calendar and the private photos you have stored in “the cloud," all without a warrant.

The government admits that if it wants to seize photos on your hard drive, it needs a warrant from a judge. And if it wants to intercept your e-mail en route, well, it needs a warrant for that, too. But once the data comes to rest on the Internet’s servers, the government claims you’ve lost your privacy rights in it. Same data, different rules.

Sound illogical? Out of step with the way people use technology today? It is. Most people assume the Constitution protects them against unreasonable searches and seizures, regardless of technology. The Justice Department thinks differently. It argues that the Fourth Amendment's warrant requirement does not apply to data stored online.

That’s the same argument the government made about telephones 80 years ago. If you really wanted your privacy, the government argued, you wouldn’t use the telephone. Unfortunately, in 1928 the Supreme Court agreed and said that wiretapping was not covered by the Constitution. It took the Court 40 years to rule that ordinary telephone calls were protected.

The courts have been equally slow in recognizing the significance of the Internet. The Supreme Court still has never ruled on whether e-mail is protected by the Constitution. Next month, the Supreme Court will hear oral argument in a case involving GPS tracking; let’s hope it doesn’t tell us we have to wait 40 years for the Constitution to cover GPS. But whatever the outcome in that case, it is unlikely to resolve all the issues associated with the new technologies we depend on now in our daily lives.

Search, but with a warrant



It’s time for Congress to update ECPA to require a warrant whenever the government reads our e-mail or tracks our movements. No competent programmer would be content to release version 1.0 of a program and then just walk away, ignoring bug reports and refusing all requests for upgraded features. Why should Congress be content with version 1.0 of our digital privacy law?

The good news is that an upgrade is in the works. Leading Internet companies and public interest groups from the left and the right have founded the Digital Due Process coalition to press Congress to enact reforms to ECPA. DDP's chief request is that, just as the government needs a warrant to enter your house or seize your computer, it should get a warrant before gaining access to your private communications stored online or to track you via your mobile phone.

Congress has taken note. Earlier this week, Senators Ron Wyden (D-OR) and Mark Kirk (R-IL) held a press conference to highlight their bi-partisan sponsorship of a bill requiring government agents to get a warrant before using technological means to track an individual. The press conference was held amid a "Retro Tech Fair" that displayed a dazzling array of 1986-era computers—highlighting just how far technology has come since ECPA was passed.

Just yesterday, Sen. Patrick Leahy (D-VT), the original author of ECPA, announced his intention to schedule a Committee markup before year's end on his ECPA reform bill.

These are encouraging steps, but you can be sure that the Justice Department will put up a fight. Prosecutors would rather act on their own, without going before a judge. They will raise all kinds of arguments about why the standard set in the Constitution over 200 years ago should not apply to the Internet.

Proponents of stronger privacy protection are gearing up, too. A left-right coalition spanning political ideologies has launched a campaign where individuals can add their name to a petition urging Congress to enact strong privacy protections.

You can get nostalgic for a 25-year-old movie, but there's nothing endearing about a 25-year-old digital privacy law.

Jim Dempsey is the Vice President for Public Policy at the Center for Democracy & Technology in Washington, DC.