Today, Senator Patrick Leahy introduced much-needed legislation to update the Electronic Communication Privacy Act of 1986, a critically important but woefully outdated federal privacy law in desperate need of a 21st century upgrade. This ECPA Amendments Act of 2011 (S. 1011) would implement several of the reform principles as part of the Digital Due Process (DDP) coalition, and is a welcome first step in the process of providing stronger and clearer privacy protections for our Internet communications and location data. Here is the bill text, along with a summary of the bill.
The upshot? If the government wants to track your cell phone or seize your email or read your private IMs or social network messages, the bill would require that it first go to court and get a search warrant based on probable cause. This is consistent with DDP's principles, on how the Fourth Amendment applies to your email and your cell phone location data, and would represent a great step forward for online and mobile privacy protections.
The bill isn't absolutely free of problems: although it clearly would require a warrant for ongoing tracking of your cell phone, it would also and unfortunately preserve the current statutory rule allowing the government to get historical records of your location without probable cause. It also expands the government's authority to use National Security Letters to obtain rich transactional data about who you communicate with online and when, without probable cause or court oversight. We should press for these problems to be fixed, and for all of the DDP principles to be addressed, as the bill proceeds through Congress.
However, as the start of the process of updating ECPA for the always-on, location-enabled technology of the 21st century, Senator Leahy's bill represents an incredibly important step in the right direction, we all should monitor Congress as they work to create new laws to better protect your online and mobile privacy.
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