U.S. Needs Strong Privacy Protections for Digital Communications

Mark Stanley is New Media Manager for the Center for Democracy & Technology, a non-profit public interest organization based in Washington, DC, and San Francisco working on Internet policy.

One of the most cherished rights in the United States is the Constitution’s Fourth Amendment protection against unreasonable government searches, which has long protected the privacy of Americans’ homes and communications. But as technology has rapidly advanced, this right—long a crown jewel of U.S. civil liberties—has not been fully applied to protect digital communications.

At issue is the Electronic Communications Privacy Act (ECPA), which specifies when the government can access digital communications such as email, documents, photos, and videos stored privately online.

The government claims, for example, that ECPA allows it to access any email that has been opened and is stored with a Web-based email service—like Hotmail or Gmail—without obtaining a warrant from a judge based on probable cause. The consequences of the United States’ failure to more fully apply its Constitutional protections to 21^st century technology could have implications beyond its borders.

First, it’s important to understand why the U.S. government claims the ability to examine citizens’ private online documents without a warrant. When ECPA was enacted in 1986, it actually got a lot right. ECPA specified that calls made on mobile phones, which were then emerging as an affordable means of communication, enjoyed the same strong protection as calls made from land line phones. ECPA also specified that email in transit was covered by the same protections, which include judicial authorization based on probable cause. Other kinds of email, however, were not protected.

The video above is a montage of retro technology that may induce nostalgia for the ‘80s and Compaq IIIs. But more importantly, it demonstrates how far technology has advanced since the United States’ digital privacy law was passed in 1986.

In 1986, email worked much differently than it does today. Back then storage with email service providers was expensive. Users would typically download email to their personal hard drives and the email service provider would delete it from its server a few days later. Once email is on someone’s personal hard drive, it receives the full protection of the Fourth Amendment’s warrant requirement.

But today, online storage is cheap, and Web-based services are able to retain their users’ email for an indefinite period. This, along with the ease of accessing Web-based email with multiple devices from nearly any location, means many people are more likely to store their email online instead of on their hard drives. Under ECPA, once email stored online has been opened, the government claims it’s fair game to access without a warrant.

ECPA also provides little protection to private videos, photos, and documents you post online to share with friends and other activists, but not with the world. Like opened email, the government can access this information without permission from a judge.

The government also claims the power under ECPA to access without a warrant location data generated by the use of mobile phones. The government is now able to track people’s movements with a degree of precision that the authors of ECPA could not have foreseen. Because there is no clear standard specified in ECPA for mobile phone tracking, the government has been able to take advantage of the legal ambiguity to access location data generated by mobiles phones without a warrant.

Why should WITNESS’ audience care about this antiquated American law?

There are two primary reasons. First, Internet and digital law in the United States can impact laws around the world. In a piece for Index on Censorship entitled “Global Internet Freedom Begins at Home,” Cynthia Wong, Director of CDT’s Global Internet Freedom Project, addresses this point, “The U.S. is often viewed as the standard bearer for many (though not all) aspects of internet regulation and its laws can and will have an effect far beyond American borders.”

The second reason is that ECPA affects the primary devices many activists use to capture video and communicate—mobile phones. It also affects the online services activists use, including email as well as Facebook, YouTube, and Twitter. As WITNESS’ Cameras Everywhere Report makes clear, mobile phones, while creating an incredible world of opportunity for activists, also introduce new threats to civil liberties, not the least of which is location tracking.

The United States has made Internet freedom an elemental part of its foreign policy, but, as should always be the case with foreign policy, a government should practice what it preaches. For the United States, this means respecting the civil liberties afforded by its Constitution; this means no government snooping of private communications without a warrant.

That’s why we’re asking you to join us, and a broad coalition of organizations from across the American political spectrum, by signing and sharing this petition to Congress to reform ECPA. If you do not live in the U.S., we encourage you to share the petition with friends who do. You can point them to this post and explain why, after 25 years, it’s time to finally update the Electronic Communications Privacy Act.