The Path to ECPA Reform and the Implications of United States v. Jones (Keynote Address)

Privacy and Security

Article Snapshot

Author(s)

James Dempsey

Source

University of San Francisco Law Review, Vol. 47, No. 1, pp. 479-499, 2013

Summary

The Electronic Communications Privacy Act (ECPA) should be updated. Reformers propose that law enforcement be required to obtain a warrant before reading email, and other increased protections for privacy. Communications firms and policymakers on the left and right support reform.

Policy Relevance

ECPA does not adequately protect constitutional privacy rights. ECPA reform proposals are reasonable.

Main Points

  • In the early 1990s, observers became concerned that law enforcement could track online transactions without showing any grounds for suspicion; also, mobile phones could be used as tracking devices.
     
  • Cases decided in 2005 and 2006 required authorities to obtain warrants to read email or text messages.
     
  • ECPA reform should be based on the building blocks of the investigate process, including:
     
    • The subpoena for basic information to identify computer users.
       
    • A court order (issued with less than probable cause) to obtain transactional data.
       
    • A showing of probable cause to obtain a warrant to read the content of messages.
       
  • The Digital Due Process working group (DDP) proposes that law enforcement be required to get a warrant to read email, even if the email is unopened, regardless of the age of the message.
     
  • The DDP proposes that law enforcement be required to obtain a warrant to access location information from a mobile device, including information identifying cell towers.
     
  • The DDP also proposes that law enforcement may use subpoenas only to obtain information about a specific account or individuals.
     
  • The lower courts have held that one cannot expect information given to a third party to remain private; in 2012, in United States v. Jones, the Supreme Court rejected that argument, finding that monitoring a suspect’s location using a GPS tracker violated expectations of privacy.
     
  • The Jones case shows that the ECPA reform proposals are reasonable.
     

 

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