Editorial: Upgrade protections of digital records
Obsolete legal protections of digital records need an immediate upgrade.
Seattle Times Editorial
THE last time the Electronic Communications Privacy Act (ECPA) was significantly revised, brick-sized cellphones cost $3,000, email was mostly limited to academics and the military. The World Wide Web was still just a gleam in the eye of Tim Berners-Lee.
The law, passed in 1986, set forward-looking standards for government monitoring of cellphone calls and emails. But advances in technology have rendered the act as obsolete as a floppy disk. Federal law enforcement’s willingness to exploit outdated privacy protections mandates an immediate upgrade.
ECPA requires law enforcement to obtain a warrant — requiring probable cause and review by a judge — for records fewer than 180 days old, the outside window for data retention in 1986.
After 180 days, the standard has been interpreted as dropping to a simple law-enforcement subpoena, allowing records to be seized without a judge’s approval — or your knowledge. A technology unforeseen in 1986 — cheap electronic storage on cloud servers — now renders those provisions absurd, and creepy.
U.S. Justice Department memos, obtained this month by the American Civil Liberties Union, show why. The federal government says it can obtain geolocation data via your cellphone — allowing your movements to be tracked — and obtain stored electronic records — emails, tweets, Facebook chats, etc. — without a warrant.
This creates an irrational disconnect between Fourth Amendment protections for hard-copy records versus those stored on the cloud. Print out an email, and police likely need to get a warrant to get it. Store it on the cloud, and no warrant is needed.
Updates to ECPA are pending in Congress, and are supported by a host of digital companies, including Microsoft, as well as liberal and conservative groups. In the House, former Microsoft executive Suzan DelBene, D-Medina, co-sponsored HR 983, giving Washington a savvy advocate for reform. Attorney General Eric Holder, under questioning from DelBene this week, acknowledged that an update was needed.
Narrow exemptions for foreign intelligence surveillance and law-enforcement emergencies — such as allowing police to track the geolocation of a suspect in a manhunt — should remain.
But the government’s creepy, warrantless reach into our digital lives should soon be as outdated as a dial-up modem.