By Elizabeth Holland
On March 12th, 1989, Sir Tim Berners-Lee put forth a proposal to make information sharing possible over computers. That proposal in turn would eventually became the World Wide Web, and today we celebrate its 25th birthday.
It’s a gross understatement to say a lot has changed in technology and the Internet since 1989, from the first website and search engines of the early ‘90s to the more recent rise and growth of cloud computing, However, there has been one constant over time: the law that protects the privacy of your online communications from government intrusion, the Electronic Communications Privacy Act (ECPA), has not been updated since it was authored in 1986.
Yes, the rules governing your online privacy are older than the Web itself. While technology has advanced at a rapid pace, electronic privacy law has remained at a standstill. Without reform, the kind of electronic communications and records that are common today— think any email, Facebook posts, search history, cloud computing documents, cell phone location information, or text messages older than 180 days— can be freely seized without a warrant.
While two reform bills have been introduced, Congress remains slow to act. The Senate Judiciary Committee passed the ECPA Amendments Act of 2013 (S. 607) in April 2013. It awaits consideration by the full Senate. The House proposal, the Email Privacy Act (HR. 1852) has a not-insignificant 184 co-sponsors, but has not yet been heard in committee. These reforms would establish a search warrant requirement for the government to obtain the content of Americans’ emails when those communications are stored with a third-party service provider. The bills eliminate the outdated “180-day” rule that calls for different legal standards for the government to obtain email content depending upon the age of an email and would also require the government to notify any individual whose electronic communications have been disclosed within 10 days of obtaining a search warrant.
As we celebrate the advances of the Web over the last 25 years, it’s long past time due to reform ECPA and bring electronic privacy law up to speed.