Senator Says it is Time to Update Outdated Law

Melanie Gross
Jun 18, 2011

News out of Washington is that Patrick Leahy, the chairman of the Senate Judiciary committee, said he is optimistic that Congress would update the 1986 law (the Electronic Communications Privacy Act, or ECPA) to protect the privacy of Americans who use the Internet and mobile phones. The law was originally crafted during the era of telephone modems and black and white Macintosh Plus. Leahy mentioned that in his career as a prosecutor, he had to obtain search warrants to search someone’s house. During a keynote speech at the Computers Freedom and Privacy conference in Washington, he said he didn’t feel it should be any different for a person’s files in electronic form. "I question whether it should be that much different if I'm going to search all your files".

The Electronic Communications Privacy Act Amendments Act of 2011 legislation that was introduced last month by Leahy that would, in many cases, require police to obtain a search warrant to access private communications and the locations of mobile devices. The one exception to this is that it does not require a warrant for police to look at your historical whereabouts as recorded by the movements of your cell phone, even if the location data is only a few hours old.

The U.S Department of Justice has argued in court in the past that warrant-less tracking should be allowed because Americans enjoy no “reasonable expectation of privacy” in cell phone’s previous locations. In April, the associate deputy attorney general, James Baker, with the Department, launched a frontal attack on the very notion of requiring search warrants for locations. Baker told a Senate panel that a requirement like that, either for historical or live tracking data, would hinder “the government’s ability to obtain important information in investigations of serious crimes.”

As his bill has no GOP supporters, Leahy has stated that he hopes to gain Republican support. “Otherwise,” he said, “we’ll have a heck of a time passing it.”

EPCA is notorious for being convoluted and difficult to follow, even for judges. The wording, reading like a hedge maze, currently means that Internet users have more privacy rights if they store data locally. This is a legal loophole that some companies are concerned could slow the shift to cloud-based services. Changing the law may streamline that process for some companies.
Over the last year or so, the Digital Due Process coalition has been urging Congress to update the law. The coalition is comprised of companies including Google, Loopt, AT&T, Facebook, and Microsoft, as well as liberal, libertarian and conservative advocacy groups, none the least of which is the Electronic Frontier Foundation.

The coalition embraces four principles, one of which is that a warrant signed by a judge needs to be required for the contents of private communications. A warrant should require to access location data. EFF has said that the bill Leahy introduced fulfills about 1.5 of the core principles they endorse.

Leahy appears to be genuinely serious about protecting the public’s right to privacy. He stated that next week, his committee would be holding a hearing on the administration’s proposal for cybersecurity legislation which was released last month. The aim of the proposal is to force companies to do more to fend of cyber-attacks. This is refreshing news in the wake of recent cyber-attacks from hactivists groups and bank heists.

Legislation that could actually require companies to be responsible for the private information they have access too? It’s a sad commentary on reality when such legislation would be required. What happened to the days when companies appreciated their clients and treated them with respect? That’s what it really boils down to, ultimately. Respecting and appreciating the people that make a business successful. One would think that protecting sensitive information like that would be a no-brainer but, as we’ve seen recently, that is not the case.

Perhaps legislation to enforce such a respect is in order. We can’t know for sure how effective it would be but it’s certainly a step in the right direction.

As far as legislation protecting the rights of citizen’s electronic privacy, it certainly seems to make sense. Why shouldn’t laws be updated to reflect the times we currently live in? When it comes to protecting the public’s privacy and keeping the public safe, there is a fine line to be drawn. However, a public that has no protection from its own law enforcement agencies isn’t a free public at all. Checks and balances are supposed to be the basis on which our entire government’s system runs. The people are entitled to those same checks and balances as well. Privacy is one of the hallmarks of freedom, after all.


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  1. Jim said on June 19, 2011 at 5:02 am

    These days companies are only concerned with protecting their customers’ data when it impacts their bottom line. Security is a cost, so they do as little of it as possible until something bad happens. Then they act surprised when their short-sighted approach bites them in the ***. Of course the next thing they do is pile on tons of security, much like locking the barn after the cow has been stolen, and act like they are the victims as their customers leave in droves. It seems no corporation is able to look beyond the next quarter these days.

  2. Jojo said on June 18, 2011 at 4:49 am

    Speaking of no privacy, I recently discovered that the Disqus commenting system (used by many websites), allows a user to be followed, but doesn’t provide any controls to allow the user the ability to block or decline to be followed.

    You may shrug at this and say so what? After all, in social media circles, the number of followers someone has is tantamount to a measure of your popularity and even self-worth for some people.

    But consider that if someone can follow you at THEIR CHOICE, they could discover who you are by WHERE you post and the clues that they may pick up from your various postings. This uncontrolled functionality also enables stalkers and trolls to tag along behind your every post.

    I don’t know if services other than Disqus allow someone the choice of being followed or not, but they should do so or be required to do so.

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