Monday, April 12, 2010

Surviellance law needs updating

Scott M. Fulton, III, managing editor of, wrote an in-depth article on about the need to update the Electronic Communications Privacy Act (ECPA), an ancient (in technology terms) law that sought to update the code covering telephone communications so that it also covered computer communications. But it was written in 1986, almost a quarter of a century ago. Computer communications now are radically different than they were then. In 1986 most computer communications were between universities, government agencies and government contractors. Today the communication between those three segments is a fraction of the communications between private companies and citizens.

The Digital Due Process (DDP) group, led by the Center for Democracy and Technology, has defined some principles for Congress to take into consideration when they look at updating the ECPA. The goal is to get internet communications the same protection given to wiretapped telecommunications. This isn't the first time that the DDP has tried to influence policy, but this time they've enlisted two of the more visible company in recent privacy discussion, Microsoft and Google. Their involvement should put some weight behind the DDP's suggested principles.

Internet communications are in dire need of legislative protection. Despite recent court rulings, just how protected online communications such as email are is uncertain. And with more of individuals critical data being stored online or in third party cloud services, the current laws and precedents make the Fourth Amendment moot. By use of the Third Party Doctrine law enforcement can deny Fourth Amendment protections to anything you store online. That includes email, financial data (if you access your bank account online...) and even your dropbox account.

Check out Mr. Fulton's article to learn a lot more about this issue. I've only touched the surface of what he covers. Before I finish, I want to include one quote to emphasize how important it is that current laws be updated, and the standard of how much privacy protection is afforded online data be updated:
"The Supreme Court has said that you can issue a subpoena -- not because you believe the law is being violated, but merely to assure yourself that the law is not being violated." Jim Dempsey, CDT Vice President for Public Policy

I don't know about you, but to me that sounds a lot like assuming guilt without evidence. Kind of flies in the face of "innocent until proven guilty" doesn't it?