Modernizing the Electronic Communications Privacy Act (ECPA)

In 1986, there was no World Wide Web, nobody carried a cell phone, and the only "social networking" two-year-old Mark Zuckerberg was doing was at pre-school or on play dates.

It was also the year that the law that protects the privacy of your electronic life — email, cell phone location records, Facebook posts, search history, cloud computing documents — was passed. Like the DeLorean of "Back to the Future," most of these technologies were still the stuff of sci-fi fantasies in 1986.

Since 1986, technology has advanced at breakneck speed while electronic privacy law remained at a standstill. The outdated Electronic Communications Privacy Act (ECPA) allows the government to intercept and access a treasure trove of information about who you are, where you go, and what you do, which is being collected by cell phone providers, search engines, social networking sites, and other websites every day.

The Founding Fathers recognized that citizens in a democracy need privacy for their "persons, houses, papers, and effects." That remains as true as ever. Today's citizens deserve no less protection when their "papers and effects" are stored electronically.

Online privacy law shouldn't be older than the Web, and Americans shouldn't have to choose between new technology and privacy.

The ACLU believes the following changes are needed to modernize ECPA:

Robustly Protect All Personal Electronic Information. Current loopholes in our privacy laws must be closed to ensure that electronic information, including most transactional communications, receives full warrant protection regardless of their age or nature.

Safeguard Location Information. Location as transmitted by my cell phone and other mobile devices is clearly personal information. Government officials should have to obtain a warrant based on probable cause before accessing it.

Institute Appropriate Oversight and Reporting Requirements.Existing reporting requirements for wiretap orders must be extended to all types of law enforcement surveillance requests.

Require a Suppression Remedy. The same rules should apply for electronic and non-electronic information: if it's illegally obtained, it should not be used against an individual in court.

Craft Reasonable Exceptions. Records should only be viewed in a true emergency with informed consent and proper notice.

VIDEO

Online Privacy Law Stuck in 1986!

Online privacy law shouldn't be older than the Web, and Americans shouldn't have to choose between new technology and privacy. But, privacy law doesn't auto-update.

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