Q&A with Thomas Snyder
Communications privacy act out of line with modern technology
Q: What is the Electronic Communications Privacy Act?
A: The Electronic Communications Privacy Act and the Stored Wire Electronic Communications Act are commonly referred together as the ECPA. Both enacted in 1986, they generally protect the privacy of wire, oral and electronic communications while they are being made and when they are stored. Generally, the ECPA prevents the government from obtaining access to electronic communications through wiretaps and similar methods without complying with certain procedural safeguards and often without obtaining a search warrant or similar approval from a judge or magistrate.
Q: What are Congress' proposed changes?
A: Because the ECPA was enacted in 1986, many of its provisions were drafted with a view toward technology and communication as they existed then. Congress is proposing significant changes to bring the law into line with modern technology. For example, under current law, any email stored by an Internet Service Provider (ISP), like Google, that is more than 180 days old is deemed to be “abandoned” and therefore obtainable by a subpoena; older emails require a search warrant and showing of probable cause that a crime was committed. Warrants must be issued by a neutral and detached judge or magistrate, while subpoenas don't. With few exceptions, the proposed changes would require the government promptly notify the individual whose emails were obtained and provide a copy of the warrant.