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April 10, 2015

Something You Probably Don't Know About Electronic Privacy

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There has obviously been a major outcry over government surveillance of electronic communications since the Snowden revelations in 2013 (that's right, it's been almost two years, and nothing has changed).

There are a lot of issues and moving parts involved in this debate--warrantless wiretaps, FISA courts, the Patriot Act, the NSA, and of course the tension between civil libertarians and law enforcement hawks. My personal view is that a plain reading of the Fourth Amendment comes down pretty solidly on the side of the civil libertarians and against the demands of the law enforcement hawks. But the hawks have been effective enough to stymie most attempts to rein in this massive and almost certainly unconstitutional surveillance, including defeating the Amash amendment in the last Congress.

Here's what you probably don't know: A 1986 law, the Electronic Communications Privacy Act (ECPA), governs much of the electronic privacy activities of the government. And here's the weird thing--it provides protections for electronic data that is LESS than 180 days old, but not for data that is OLDER than 180 days.

Why did policy makers think that distinction made sense? I don't know, but it's one example of how a law written 30 years ago is completely out-of-date and incapable of governing the current data storage practices in the Internet Age. And especially in the age of cloud storage.

ECPA badly needs updating to ensure that all electronic communications, not just that which is more recent than 180 days, has the basic Fourth Amendment protections against search and seizure without probable cause, and without a specific warrant. It's a no-brainer, and IPI will be writing and speaking more about the need for Congress to pass legislation updating ECPA. It should be a popular measure with the American people.

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