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Electronic Privacy Law is Older Than the World Wide Web — It’s Time for An Upgrade

The Electronic Communications Privacy Act (ECPA) is in serious need of an update.
Chris Calabrese,
Legislative Counsel, ACLU Washington Legislative Office
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March 30, 2010

In 1986, there was no World Wide Web, nobody carried a cell phone, and the president was a man born in 1911. That was the year that the statute that protects the privacy of your electronic life — email, search terms, cloud computing, cell phone location records, postings to Facebook — was passed into law. Even then, Congress recognized that computerized record-keeping would pose privacy issues as information that had formally resided in the home (and been protected by the Fourth Amendment) moved to the hands of businesses.

Today, the Electronic Communications Privacy Act (ECPA), which should safeguard electronic communications records (like your email or chat logs) and the information you share with companies (like Google documents or social networking posts), is in serious need of an update.

Fortunately, the ACLU isn’t alone in that opinion. Other civil liberties groups and major corporations like Google, Microsoft and AT&T agree. That’s why we’ve all joined together to ask Congress to reform ECPA. We all believe that law enforcement should have to go to a judge and get a warrant that says it has probable cause to believe you’ve committed a crime before it can read your email, browse through your social networking account, or track your location.

This is precisely what the Framers of the Constitution intended. The Fourth Amendment recognized citizens of a democracy need privacy for their “persons, houses, papers, and effects.” Two hundred years ago, those papers would have been in our homes and firmly protected by the Constitution. The fact that they are now held on the servers of private companies doesn’t change the principle governing our privacy rights.

Modernizing ECPA is the first step in a long process of reforming digital rights. The ACLU believes the law should extend probable cause protection to other types of records (like who you call, text and email). We believe that illegally obtained digital information shouldn’t be used in court, and that there should be strict record-keeping of all law enforcement requests.

Some folks in our coalition agree with this, others wouldn’t go this far. But we do agree on the fundamentals: without criminal suspicion, the government shouldn’t be reading our personal correspondence online or tracking our movement offline.

It’s time our privacy laws got an upgrade. Tell Congress to update ECPA!

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