You Gotta Fight For Your Right To Privacy

Have you ever heard of the Electronic Communications Privacy Act of 1986? I hadn’t either, not until Senator Patrick Leahy (D-Vermont) moved to update it this year with a new amendment that make it more difficult for government agents to access data on remote servers containing information about who you’ve been talking to, where you’ve been and what you’ve seen.

It’s called the ECPA Amendments Act of 2011, and if you’re concerned about keeping your private data secure, it’s legislation worth supporting. “Today, this law [the ECPA] is significantly outdated and out-paced by rapid changes in technology,” said Leahy while proposing to amend the ECPA in May. “Updating this law to reflect the realities of our time is essential to ensuring that our federal privacy laws keep pace with new technologies and the new threats to our security.”

You should take a moment to skim through the full text of the proposed amendment, which is available on Leahy’s Website. Section 3 is where it starts to gets good: under the proposed law, federal agents would need a search warrant in order to access any archived electronic communications stored on a remote server.

That would ensure electronic data like your email, text messages and Facebook posts are protected under the Fourth Amendment (which protects U.S. citizens from unreasonable searches and seizures), even if they’re stored by a remote computing, geolocation or electronic communications service provider. The proposed amendment forces the government to treat that data like your private property. As it stands, the government only needs to obtain a warrant for records that are less than 180 days old; any data older than that could be subpoenaed by a prosecutor and accessed without your knowledge if government agents demonstrate reasonable grounds that the records could prove useful in an investigation.

Even better, Section 5 of Leahy’s amendment establishes new privacy protections for the geolocation data recorded by mobile devices like your smartphone, laptop, or tablet and stored remotely. Currently, investigators only need a court order to access the personal location data stored by companies like Apple and Google, but Leahy’s amendment would require government agents to obtain a search warrant (or court order under the Foreign Intelligence Surveillance Act) to track you via the real-time GPS data transmitted by your devices to your service provider or device manufacturer.

Still, the bill is far from perfect; Section 4 still permits the government to delay notifying you that they’ve accessed your electronic communication records for up to 90 days if they can secure a court order. Worse, Section 5 of the amendment allows for government agents to continue accessing any remote repositories of historical GPS data (i.e. where you’ve been in the past) with just a court order.

gps privacy
Should the government need a warrant to look at your location data if it's stored on a remote server? It's up to you.

But any update is better than none at all, and the only way we’re going to make things better is to support the organizations that make personal privacy a priority.

“We’ll definitely be pushing for people to write and pick up the phone, call their lawmakers and express their support when the time is right.” said Rebecca Jeschke, Media Relations Director of the Electronic Frontier Foundation. The EFF is part of the Digital Due Process Coalition, and they’ve been working directly with Leahy’s office in amending the ECPA to reflect what constitutes unreasonable search and seizure in the 21st century.

So if you take data privacy seriously, consider supporting groups that fight to expand civil liberties and personal privacy rights; the EFF is just one member of a consortium of corporations and privacy advocates that has been fighting to modernize the ECPA since their formation in 2010, and they need our support to succeed.

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