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Not Without a Warrant

The Electronic Communications Privacy Act (ECPA) of 1986 (ECPA) is a federal statute that specifies standards for government monitoring of cell phone conversations and Internet communications.  When first written, ECPA was a forward-looking statue that provided important privacy protections to subscribers of then-emerging wireless and Internet services.  However, while technology has advanced dramatically in the 25 years since ECPA was enacted, the statute’s privacy standards have not been updated, leaving important information without full protection.  The EDUCAUSE blog on May 18th describes Sen. Leahy’s proposed legislation to update ECPA.  Meanwhile, the courts have been slow in extending the warrant requirement of the Constitution’s Fourth Amendment to new technologies.

Consequently, the government claims the power to track our movements without a warrant, using our cell phones, which constantly report our location to our wireless service providers.  The government argues that it does not need a warrant to read much of our email or any of the documents that we store and share privately in the Internet “cloud.”

Groups from across the political spectrum have launched an online petition campaign for ECPA reform.  The theme is "Not Without a Warrant."  The campaign focuses on two issues that have broad common interest for the higher education community and for those who run campus networks - warrants for government access to private communications and warrants for mobile phone tracking.

The petition reads:

The government should be required to go to a judge and get a warrant before it can read our email, access private photographs and documents we store online, or track our location using our mobile phones.  Please support legislation that would update the Electronic Communications Privacy Act of 1986 (ECPA) to require warrants for this sensitive information and to require the government to report publicly on the use of its surveillance powers.

A diverse coalition of associations, companies, think tanks, and public interest groups from across the political spectrum have founded Digital Due Process and have called for change.  EDUCAUSE is a member of this coalition.  The group has said that the following principles should guide ECPA reform:

  • Information should receive the same protection regardless of technology or platform.
  • Reform should preserve the building blocks of criminal investigations--subpoenas, court orders, etc.--as well as the sliding scale that allows law enforcement to escalate investigations.
  • Generally, a type of information should have the same level of protection whether it is in transit or being stored.
  • How old a communication is--or whether or not it has been opened--should be irrelevant to the privacy protections it receives.
  • All stakeholders--service providers, users and government investigators--deserve clear and simple rules.
  • The exceptions that have been written into ECPA over the years should be left in place.

Based on these principles, Digital Due Process recommends that ECPA be amended to make it clear that the government, except in emergency situations, must obtain a warrant from a judge before reading a person's email or tracking her movements via her mobile phone.  The “Not Without a Warrant” campaign is another way to let Congress know that ECPA reform is overdue.

EDUCAUSE will continue to monitor and report on this issue.

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