“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”
– Fourth Amendment to the United States Constitution
- Conflicting standards and illogical distinctions: ECPA sets rules for governmental access to email and stored documents that are not consistent. A single email is subject to multiple different legal standards in its lifecycle, from the moment it is being typed to the moment it is opened by the recipient to the time it is stored with the email service provider. To take another example, a document stored on a desktop computer is protected by the warrant requirement of the Fourth Amendment, but the ECPA says that the same document stored with a service provider may not be subject to the warrant requirement.
- Unclear standards: ECPA does not clearly state the standard for governmental access to location information.
- Judicial criticism: The courts have repeatedly criticized ECPA for being confusing and difficult to apply. The Ninth Circuit in 2002 said that Internet surveillance was “a confusing and uncertain area of the law.” In the past 5 years, no fewer than 30 federal opinions have been published on government access to cell phone location information, reaching a variety of conclusions.
- Constitutional uncertainty: The courts are equally conflicted about the application of the Fourth Amendment to new services and information. A district court in Oregon recently opined that email is not covered by the constitutional protections, while the Ninth Circuit has held precisely the opposite. Last year, a panel of the Sixth Circuit first ruled that email was protected by the Constitution and then a larger panel of the court vacated the opinion.
Since enactment of ECPA, there have been fundamental changes in communications technology and the way people use it, including:
- Email: Most Americans have embraced email in their professional and personal lives and use it daily for confidential communications of a personal or business nature. Because of the importance of email and unlimited storage capabilities available today, most people save their email indefinitely, just as they previously saved letters and other correspondence. The difference, of course, is that it is easier to save, search and retrieve digital communications. Many of us now have many years worth of stored email. Moreover, for many people, much of that email is stored on the computers of service providers.
- Mobile location: Cell phones and mobile Internet devices constantly generate location data that supports both the underlying service and a growing range of location-based services of great convenience and value. This location data can be intercepted in realtime, and is often stored in easily accessible logs files. Location data can reveal a person’s movements, from which inferences can be drawn about activities and associations. Location data is augmented by very precise GPS data being installed in a growing number of devices.
- Cloud computing: Increasingly, businesses and individuals are storing data “in the cloud,” with potentially huge benefits in terms of cost, security, flexibility and the ability to share and collaborate.
- Social networking: One of the most striking developments of the past few years has been the remarkable growth of social networking. Hundreds of millions of people now use these social media services to share information with friends and as an alternative platform for private communications.