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.
The bottom line is the proposed amendment seeks to establish that an individual has a reasonable expectation of privacy, protected by the Fourth Amendment, in the contents of their email accounts in the hands of ISPs.
Q: What is the Department of Justice's position with respect to the changes, and why is the DOJ distinguishing between ISPs and corporate emails stored on their own servers?
A: The DOJ is not opposing the elimination of the 180-day rule, but there are concerns. For example, under current law, the government can issue a subpoena to any corporation for records of regularly conducted activities, which almost always include electronic communications. A warrant is not required. DOJ objects to any amendment to the ECPA that would require a search warrant for such routine business records. DOJ is concerned about new search warrant and notification requirements applying to civil investigations, where theoretically no criminal allegations are raised. The government couldn't meet the requirement to obtain a formal search warrant in such a case.
Q: How will this affect individuals and their privacy when it comes to emails?
A: Individuals will have additional assurance the government can't obtain their private electronic communications without at least demonstrating grounds to believe there is evidence of a crime contained therein. Some ISPs, like Google, have adopted a position that they wouldn't disclose such records without a warrant. The bill now makes that position the general rule and establishes a blanket expectation of privacy in email.
PAULA BURKES, BUSINESS WRITER