The only existing federal protections for privacy on the internet are 26 years old. It is clearly time to update them. The Electronic Communications Privacy Act of 1986 (ECPA) contains standards for law enforcement interception and access of electronic communications. At the time it was created, it addressed existing technologies. To put it in perspective, 26 years ago America Online (AOL), Google, Hotmail, and Yahoo did not exist. Social networking, let alone email or even internet access, were nonexistent for the vast majority of Americans. The legal standards ECPA contains are pre-historic in a world where hardware is obsolete in less than a year and new technologies arrive monthly.
The news isn't all bad, though. ECPA may be in the process of getting a much needed update. Senator Patrick Leahy has proposed legislation which, while it does not entirely fix ECPA, makes it much stronger. In particular, this legislation would require that law enforcement obtain a warrant based on probable cause in order to access email and other data stored on the internet. Currently, email older than 180 days is treated as discarded and given very little legal protection because, as American Civil Liberties Union
Legislative Counsel Chris Calabrese points out:
"Congress was so unsure of how to handle it that they treated it like a combination of phone call and letter."
and ECPA certainly does not address cloud data. Similarly:
"...no matter what privacy setting you use, information that is shared with third parties like Google and Facebook—photos, private journals kept online, Facebook pages viewable by only a few close friends—is accessible by police without a judge’s approval."
Dozens of civil liberties advocacy groups sent a letter to Senator Leahy and ranking member of the Judiciary Committee Senator Charles Grassley supporting these amendments.
As the letter notes, the holes in ECPA allow for invasions of privacy that disproportionately affect people of color. It is no secret that the government target communities of color for surveillance and political repression, including the African-american community and the Arab, Muslim, Middle-Eastern, and South Asian community. For example, the letter points out:
... the Department of Homeland Security (DHS) monitor[s] social networking sites that cater to specific racial and ethnic demographics...U.S. Citizenship and Immigration Services had been monitoring social networking sites including MiGente, which caters to the Latin American community, to investigate citizenship petitions.
At this point, the Senator Leahy's legislation has not left the Judiciary Committee. In addition to the letter supporting the amendments, the Committee received letters from law enforcement opposing it. There is still time to contact the members of the Judiciary Committee in support of the legislation and move electronic privacy standards into this century.