Privacy Law Enacted in 1986 May Need Updates

By Ed Silverstein January 13, 2011

There is increasing interest by law enforcement authorities in private online records – and their requests fall under a law that was enacted prior to the widespread use of much of the technology it regulates.

Online services say they are frequently asked for user data by police and other government investigators.

In 2010, Google created a tool that details the number of requests. There were over 4,200 requests in the first six months of 2010, the company said. Similarly, Verizon said in 2007 it gets about 90,000 requests annually.  Facebook in 2009 also said that it receives 10 to 20 requests a day on subpoenas or related forms.

More recently, the U.S. Justice Department is seeking the Twitter accounts of users linked to the controversial WikiLeaks site, which has been publishing leaked, confidential diplomatic cables.

The New York Times reported that both Internet providers and consumer proponents contend the 1986 privacy law – known as the Electronic Communications Privacy Act of 1986 – needs to be updated because it was enacted before the later development of the Web, cell phone and e-mail. The law has authority over e-mail, telephone conversations and electronic stored data, according to the U.S. Justice Department.

TechZone360 reported last year that U.S. Rep. Jerrold Nadler (D-NY), then-chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, held a hearing on the Electronic Communications Privacy Act (ECPA), which looked at reforming the law, given recent advances in technology.

"ECPA was passed in 1986, well before we commonly used the Internet for e-mail, much less for 'cloud computing' and remote storage, when cell phones were rare and included no tracking technologies capable of mapping our every movement," Nadler said in a statement last year. "Communications technology now evolves at an exponential pace. Certain technological advances provide criminals with new platforms for unlawful activity, and, other advances provide new opportunities for law enforcement agencies charged to protect us from such criminals to intervene in our private lives. Thus, we must consider whether ECPA still strikes the right balance between the interests and needs of law enforcement and the privacy interests of the American people."

In addition, there is “a patchwork of confusing standards that have been interpreted inconsistently by the courts, creating uncertainty,” The Times reported.

One of the large issues is what judicial requirements investigators need to meet if they are trying to seize private online content.

The Times said that Internet companies want e-mail to “have the same protection from law enforcement as the information stored in a home. They want law enforcement agencies to use a search warrant approved by a judge or a magistrate rather than rely on a simple subpoena from a prosecutor to obtain a person’s online data.”

But law enforcement advocates contend that new communications technology may limit access to important data – especially after the security needs generated by the Sept. 11 terrorist attacks.

Ed Silverstein is a TechZone360 contributor. To read more of his articles, please visit his columnist page.

Edited by Janice McDuffee

TechZone360 Contributor

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