Privacy law needs updating for twenty-first century

Society is in a constant state of flux. As society and technology change, the law must change along with them. The Electronic Communications Privacy Act does not reflect the evolution of technology that has occurred since its passage in 1986 and is now outdated. It is time for Congress to fully support the changes in the ECPA advocated for by Sen. Patrick Leahy, D-Vt., to ensure the constitutional privacy rights guaranteed to all American citizens are zealously protected.

Before Justice Louis Brandeis rose to the bench of the U.S. Supreme Court, he recognized the law must change as society changes. Advocating for a recognition of the right to privacy, he famously wrote in a Harvard Law Review article published in 1890 “the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection.” This article, and his subsequent views while on the Supreme Court, had a major influence on later judges — judges who eventually enshrined the notion each person has a right to privacy into the fabric of American constitutional law.

The ECPA was enacted in 1986, a time during which most web-based email was nonexistent. In addition, according to the Electronic Privacy Information Center, “instead, [email] primarily existed in local intranets where clients would download their messages from the server and the server would, generally, not keep a backup.” Since 1986, email has become a standard method of communication for the general public, leading to a massive decrease in the amount of mail sent through the postal system.

The numerous flaws in the ECPA have seriously eroded people’s right to privacy in regards to electronic communications. Essentially, once you have opened up an email sent to you, it can be accessed by law enforcement without a warrant predicated on probable cause. In addition, if you choose not to open up an email, it can be accessed by law enforcement after 180 days without a warrant. Instead, law enforcement can access these two types of emails with a subpoena, requiring only “specific and [particular] facts showing that there are reasonable grounds to believe” the emails are “relevant and material to an ongoing criminal investigation.” Other emails — ones considered “in transit” — require warrants based on probable cause.

To fix these problems contained in the ECPA regarding people’s privacy in their personal email communications, Leahy has promised to continue his efforts in Congress to update this antiquated law to reflect the needs of our modern society — efforts that failed last year because of a politically divided Congress. As Leahy said in a speech last month at Georgetown University Law Center, “I will keep pushing to update our privacy laws to address emerging technology and the Internet, including the Electronic Communications Privacy Act and cybersecurity laws.” His proposal to amend the ECPA would require law enforcement to obtain a search warrant to access a person’s email in all circumstances, thus removing the arcane distinction between email that is “in transit” and those in “remote storage.”

Although under the ECPA law enforcement can obtain certain emails without a search warrant, not all federal courts have adhered to this view. As the U.S. Circuit Court of Appeals for the Sixth Circuit wrote in United States v. Warshak, “we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial ISP.’” Two reasons for their ruling — among many — were “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish,” and also “email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.”

It is not enough that one federal appeals court has ruled this federal law is unconstitutional as applied to the defendant in United States v. Warshak. Congress needs to go further and protect the constitutional privacy rights of all Americans in regards to their emails by amending the ECPA, as Leahy has advocated, to explicitly require law enforcement personnel to obtain a warrant based on probable cause to access all email communications. Without such an explicit requirement, law enforcement is bound to access certain emails without warrants until the U.S. Supreme Court requires them to do so by invalidating parts of the ECPA as violating the Fourth Amendment.

Aaron Laudenslager (loudenslager@wisc.edu) is a first year law student.