This morning, the Senate Judiciary Committee held a hearing on the status of 4th Amendment privacy protections for data and electronic documents stored remotely – think web-based email or geo-location information from your cell phone. Today’s laws allowing law enforcement access to your information are highly convoluted and arguably do not ensure protection against unreasonable searches and seizures.
The Electronic Privacy Communications Act (ECPA) has not been touched since 1986, despite the advent of cloud computing, location services on mobile phones, and more. This means an email or document stored on your computer is treated wholly different by law enforcement than an email or document in transit online or stored in the cloud. Click here for a great chart from CEI that outlines this confusion.
Coinciding with the hearing, Digital Liberty joined a letter with 9 free-market groups, including TechFreedom and the Competitive Enterprise Institute, urging Congress to update the byzantine laws to ensure the 4th Amendment enters the 21st century by protecting documents stored online. From the letter:
The Fourth Amendment’s protection of the “right of the people to be secure … against unreasonable searches and seizures” is the crown jewel of our constitutional liberties and our greatest bulwark against tyranny. Yet most U.S. courts have declined to extend Fourth Amendment protection to digital “papers” stored with third parties, even those reasonably expected to remain private. In 1986, Congress attempted to fill this gap with the Electronic Communications Privacy Act (ECPA), which remains the primary federal law governing law enforcement access to electronic communications.
For its time, ECPA was a forward-looking, liberty-enhancing statute. But new technologies have changed how individuals and businesses communicate in profound ways unforeseeable in 1986. For example, with storage costs plummeting,3 more and more sensitive information once stored locally (and protected by the Fourth Amendment) is being stored remotely (where it is only partially protected by ECPA). Mobile phones track users’ movement to support a variety of beneficial services and applications—yet under ECPA, this locational data may be obtained by law enforcement without a search warrant.