It's a given that laws governing a democratic society will always lag technology. But the statutes governing our emails and other electronic communications lag more than most.
Tech companies and privacy and civil liberties advocates have been urging Congress to pass reforms to the 1986 Electronic Communications Privacy Act, which governs some email communications, for years. But despite how mainstream the use of Internet-based applications and services has become, many of them -- such as web-based email -- still do not enjoy the same legal protections that our postal mail does. (Indiana University law professor Fred Cate explains why in the below video, recorded after a congressional hearing in 2010.)
But maybe, just maybe, 2015 will be the year when the email and data of Americans earn the same rights our snail mail enjoys. Two bills that would update privacy protections for the data stored by third-party service providers -- like Google, Yahoo or Facebook -- have widespread support in Congress.
An extraordinarily broad coalition now supports the ECPA reform bills that are before the 114th Congress today. The Electronic Communications Privacy Act Amendments Act of 2015 has 23 c0sponsors in the U.S. Senate. The Email Privacy Act has 292 cosponsors in the House, making it one of the most popular bills in the lower chamber. After many months of ignoring an e-petition that sought to forbid government agencies to read communications without a warrant, the White House finally weighed in on the issue this summer, agreeing that "ECPA is outdated, and it should be reformed."
On the other side of the issue, however, sit the same law enforcement and civil agencies that have held off reforms in past sessions of Congress. In yesterday's Senate Judiciary Committee hearing on ECPA reform, representatives of the Federal Trade Commission, the Justice Department and the Securities and Exchange Commission once again testified that updating the ECPA statute could damage their capacity to conduct investigations.
The Fourth Amendment to the U.S. Constitution gives citizens the right for their "persons, houses, papers, and effects" to be secure against "unreasonable searches and seizures" unless a judge issues a warrant based upon probable cause. That legal standard endured from 1791 until the advent of cloud computing and mobile devices. The Bill of Rights enacted in the 18th century should live on as digital due process in the 21st century. Updating that code is long since overdue.