Congress Tries, Yet Again, To Fix Outdated Electronic Privacy Laws

from the that-4th-amendment-thing dept

We've been writing about ECPA reform for ages. In case you haven't been following this, ECPA is an incredibly outdated law concerning the privacy of electronic communications. As it stands now, thanks to some oddities in the law, the government can often access your online data with little oversight (among the many oddities in the bill, it considers emails on a server for more than 180 days "abandoned" and accessible by the government without a warrant). While many politicians in Congress claim that they're in favor of ECPA reform, little ever seems to happen with it. Late last year it had looked like a deal might have been worked out whereby Congress would approve strong ECPA reform that would respect the privacy of our data, in exchange for also reforming privacy laws concerning video rental data (basically a favor to Netflix and Facebook).

Law enforcement, as always, flipped out about the ECPA reform bit, and at the very, very end of Congress, the video rental reform stuff passed while ECPA reform was left on the cutting room floor.

This week, however, ECPA reform has been brought back once again, this time in the House, by Rep. Zoe Lofgren, along with Reps. Ted Poe and Suzan DelBene. The proposed bill, called The Online Communications and Geolocation Protection Act, is embedded below. It's a strong bill, meaning law enforcement folks are likely to flip out again. Among the reforms, it would set up a clear and consistent standard for requiring a warrant for government access to electronics communication. That is, it will get rid of the hodge podge of ECPA rules that change based on how old the communications are, if it's been opened, if it's a draft, etc. Now, we just get one rule, across the board, and that rule is get a warrant. It also requires (with a few exceptions) that notice be given to the user/account holder, so that people actually know when the government goes looking through their data.

In an attempt to appease law enforcement, the bill leaves in many "exceptions," that will allow law enforcement to bypass these rules in certain cases. The bill would be stronger without these exceptions, but there's no way the bill passes without something like that in there.

As you may have realized from the name, the bill also has a section dealing with "geolocation" information. This is important because there are a bunch of ongoing fights concerning the privacy of your location data (obtained via mobile phones, GPS devices and such). As we've covered here repeatedly, the courts have been ruling every which way on the legality of law enforcement accessing this kind of data, and so the bill tries to clarify that, and puts in place prohibitions on the government intercepting location info without a warrant (with, of course, a few key exceptions -- including in an emergency, if the person gives consent or if the data is already public).

It's a good bill that deserves support. While it may not be perfect, it's a hell of a lot better than what we have now. This would be a huge step up in protecting our privacy from government intrusion, which means it's going to be an uphill battle against law enforcement interests to get it passed. That said, maybe this is finally the year when all those elected officials who claim ECPA reform is important get their act together and vote to approve real reform.

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  1. icon
    That One Guy (profile), 8 Mar 2013 @ 3:22pm

    My common sense is tingling...

    A bill that interferes with the abilities of law and governmental agencies to do whatever they please without any oversight... oh yeah, they are going to completely and utterly flip out on this one, which is just one more reason I really hope it passes, and without being butchered or watered down too much.

    reply to this | link to this | view in thread ]

  2. identicon
    out_of_the_blue, 8 Mar 2013 @ 4:17pm

    Best you can hope for is left unchanged, so no worse.

    Really, what's your basis for the faintest optimism? You STILL believe that people in gov't have some shreds of virtue? What a Pollyanna.

    It's at best for PR while every day tyranny worsens. Take Rand Paul with the drone filibuster. Ron Paul staked out the "libertarian" concession in Congress, and kept that faint hope alive for THREE DECADES without the least effect on the statist trend. Now Rand Paul is taking over the concession. -- Heck, we don't even KNOW what Holder's answer really is, the question was so narrowly constructed. When an attorney gives a flat "no", he's thought of a huge loophole.

    reply to this | link to this | view in thread ]

  3. icon
    Valkor (profile), 8 Mar 2013 @ 4:33pm

    For the love of the Republic, E-mail your Representative about HR 983, this bill. Remind them that they swore an oath to uphold and defend the Constitution, not the FBI, CIA, or Keystone Cops.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 8 Mar 2013 @ 4:43pm

    'maybe this is finally the year when all those elected officials who claim ECPA reform is important get their act together and vote to approve real reform.'

    keep on dreaming!! this is gonna be questioned so much, have so many changes demanded by law enforcement, it wont be worth changing.

    reply to this | link to this | view in thread ]

  5. icon
    Valkor (profile), 8 Mar 2013 @ 6:22pm


    How many citizens' voices does it take to counter balance one law enforcement official? If a thousand constituents said NO for every LEO that said Yes, would your rep listen to the constituents? Do we elect representatives or rulers? Congress ignores us only because we let them get away with it.

    reply to this | link to this | view in thread ]

  6. icon
    special-interesting (profile), 8 Mar 2013 @ 11:24pm

    This is (kind of) on topic but to fix such an important, and so screwed up, mess such as individual privacy it takes some historical review on the roots of digital privacy and then jumping off to some (admittedly) proposals that may be ahead of the current legislations scope. (its nice to try anyway)

    Since electronic technology is in its infancy it hard to make any permanent law. Technology is an ever changing thing while laws stay forever and the legislation records are filled with laws that make no sense today yet are still enforceable.

    Privacy in general is not a new subject to the law and from its inception the Constitution placed it as one of the highest priorities. The current dilemma is not a problem but is a problem anyway. (Go figure.) The problem is two part in that there are the relatively easy (to understand) Constitutional aspects and the law enforcement established procedures to deal with. One without the other is meaningless.

    The root mistake of the electronic privacy debacle currently existing can be found about 40 years ago when some how electronic data and communications were declared outside of existing definition of privacy found in the constitution. On the obvious side that is ridiculous.

    Ok Sherman. Set the way-back machine to ~40 years ago: Nixon and the Democratic party was trying fend off wiretapping charges (Watergate) and the Cold War was winding down. The combination of a President with no moral challenges to spying (on anyone?) combined with a paranoiac law enforcement environment gave way to several court cases that set precedence that ignored the 1st amendment rights to privacy in regards to electronic digital communications. (I bet there are a lot of cool references am passing up here but am stretching memory as it is. I was busy watching Bullwinkle & Rocky)

    In the courts, at the time, eye; a paper letter was protected but if you took that exact same text and e-mailed it over the wire... it was different and not subject to normal privacy expectations. They did not have the constitutional fortitude or vision to see beyond the written page. (more of a disappointment that a pun)

    Regardless of where (geo-location) you are and what you say from there these things should be not just private but very private. Complication this are some expectation of privacy issues of where Twitter is a public forum but would you like government to monitor all your tweets? Probably not and could not imagine it to be any of the governments business. In the old days if the government was watching you they had to declare you a suspect and this would alleviate the public in that they would not be subjected to spying. (of any kind the public was so much aware of their individual rights at the time)

    in the sense that monitoring such, with this same search warrant being sent by certified mail to the targeted person/entity. There is a distinct difference between a search warrant and spying although the court does not distinguish such. They should be treated differently.

    For any law to have teeth it should have prison terms and fines that apply to either citizens or persons employed by government both for the officer who ordered such an act and the agency involved including the entire dissolution of such agency or department of same agency. (Scapegoating will always be a problem but wth anyway)

    Proposal #1: Generally issued search warrants will be sent by registered letter or e-mail with official signature to the affected party/individual/entity. This will allow the individual to be aware of the fact that they are a suspect. The law should not be able to indiscriminately search anyone and especially without ones knowledge without a very detailed and substantiated search warrant. Only the term “Suspect” can be use and the term “person of interest” is abolished.

    There are special cases of search warrants, where the prosecution has survived strict justification rules reviewed by a judge in, not informing the suspect and allows (a hopefully impartial) law enforcement officials to search your property or other premises without your knowledge with or without your permission and even possibly, with further strict justification, authorizing force.

    It is important that law enforcement not be 'loose guns' and subject software programmers or anyone to armed forced entry warrants without an extremely high requirement that are reviewed by a judge. Of course all the justifications must be in writing and on the search warrant and no secret provisions or sources either.

    Proposal #2: Spying is another matter entirely. The current practice of using normal low requirement of justification search warrants for everyday spying on individual is kind of Orwellian. The requirement for spying on an individual should be (almost?) as high as armed forced entry. It would also be nice that after a year or so they would have to notify you after the (spy) warrant had expired. Call it a spy-warrant.

    Proposal #3: A re implementation, of an old principle, of the discarded judicial policy of throwing out all evidence acquired in an improper manner. This means that if you were served a search warrant for stolen pencils from your office they could not use as evidence, for any reason, the erasers you stole from your former boss. Better yet make it legislation. (with penalties)

    A zero tolerance policy of no exceptions would be important too. (This might come back to haunt government. They should not teach by example stupidity)

    Yeah I'm overwriting a lot of law but so what its only a proposal anyway. This has been loosely worded so its only my opinion anyway.

    Law enforcement and spy agencies will scream and whine but thats all they can do. As one ignores a kid bawling in the toy store that mommy cant afford some shiny toy we should ignore blatant violations of our privacy. Convenience is no excuse for breaking the law or the constitution.

    No one promised anyone an easy job without risk and if someone does not like it please polish up the resume. Its normal for managers to replace personnel who don't agree with current practices so no problems if we just appoint department heads (wow what a change of elected people that would take?) that will follow the letter of the law and not the perceived intent of law.

    Of course this would mean also throwing out the 'intent of the law doctrine' in current law enforcement vogue.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 9 Mar 2013 @ 4:49am

    In any kind of accountability system develops a "paper trail", amnomolies in the trail is used to quickly hi-light systemic corruption, whether it is in the accounts of a company, the supply of aircraft parts, or the honesty of law-enforcement, Warrents have been used for a while, part of the reason, it establishes a record of what law-official did what, what where they looking for, If it turns out a few years down the track some law-official perverted the course of justice. Warrents, make it that much easier to catch the bugger. If law-official dont want to use warrents they must have some corrupt thing to hide.

    reply to this | link to this | view in thread ]

  8. identicon
    tiger, 9 Mar 2013 @ 11:06am

    Continue to throw crap to see if it sticks when they have less than three weeks and the government shuts down. Then they can waste all the time they want debating useless proposals with their families at home.

    reply to this | link to this | view in thread ]

  9. icon
    Ninja (profile), 11 Mar 2013 @ 4:21am

    Each time the reform fails pressure mounts. I think more exceptions will be added before the end if it passes watering it down. In any case it seems to me (from what I read, I don't know the law itself) that almost anything will be better... Good luck, Americans need more protection from their Govt..

    reply to this | link to this | view in thread ]

  10. icon
    Niall (profile), 13 Mar 2013 @ 6:57am


    Too many of them swore a superior oath to suck Grover Norquist's toes.

    reply to this | link to this | view in thread ]

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