The White House this week released a report on big data in which it calls for an update to the Electronic Communications Privacy Act (ECPA). The act, which should in fact be called the Electronic Communications Lack Of Privacy Act, is sorely in need of reform.
The ECPA allows the government to access email that is older than 180 days, or has been opened, with a subpoena. In short, it has the legal authority to read most of your email without a warrant. The law made more sense in the era in which storage capacity was expensive. Today, it is not.
Here is the report’s note on reforming the act:
Amend the Electronic Communications Privacy Act. Congress should amend ECPA to ensure the standard of protection for online, digital content is consistent with that afforded in the physical world—including by removing archaic distinctions between email left unread or over a certain age.
Yes. There is ample interest in Congress to reform the bill. In fact, several amending bills have been proposed. The Leahy-Lee Electronic Communications Privacy Act Amendments Act (text) was one such effort. Rep. Zoe Lofgren also took a stab. Nothing managed to get itself passed by both chambers of Congress and across the President’s desk.
Adding protection to email akin to the sort of protection that your other papers enjoy is logical, and will, I think, eventually make it into law. The question is how and when?
There is a slight tinge or ironic mental dissonance at play in this discussion, living as we do in the era of XKeyscore — how important is it to limit the government from one door, when another stands wide open? But this is a fight worth having, because we can win.