On October 20, 2011, technology companies like Google and Facebook sponsored a night of cheeky protest to visibly highlight how out of step the Electronic Communications Privacy Act (“ECPA”), enacted 25 years ago, has become with modern technology. United as the Digital Due Process Coalition (the “Coalition”), their hope is to convince the U.S. Congress to update the law to be in step with an age that include cloud computing, gigabit networks, terabyte storage and social media. In its current form, the Coalition argues that the ECPA gives too much power to the government to listen (or read) in on citizens’ communications.
Currently, the government needs a warrant from a judge to seize photos on your hard drive or to intercept email en-route. But once the data comes to rest on the internet cloud’s servers, the government claims you have abandoned the data and lost your privacy rights in it and it is not subject to a warrant. This perhaps was a fair assumption in the ‘80s, but not in this era of archiving everything in Gmail or Hotmail and the prevalent use of cloud computing.
Despite the concerns expressed by the Coalition, the Coalition currently faces two obstacles:
1. There is currently no Republican support for Sen. Patrick Leahy’s proposal, the Electronic Communication Privacy Act Amendments Act of 2011, which attempts to modernize the ECPA; and
2. The U.S. Justice Department has launched a concerted political attack on the principles behind the Coalition. It is the department’s view that rewriting ECPA to grant cloud computing users more privacy protection and to require court approval before tracking Americans’ cell phones would hinder police investigations.
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