Electronic Communications Privacy Act - Criticism

Criticism

The (ECPA) has been met with criticism through the years, including its failure to protect all communications and consumer records, due to the law being outdated with the current way in which people share, store and use information. For instance, under the ECPA it is relatively easy for a governmental agency to demand service providers hand over personal consumer data that has been stored on their servers.

For instance, email that is stored on a third party's server for more than 180 days is considered by the law to be abandoned, and all that is required to obtain the content of the emails by a law enforcement agency, is a written statement certifying that the information is relevant to an investigation, with absolutely no judicial review required whatsoever. When the law was initially passed, emails were stored on a third party's server for only a short period of time, just long enough to facilitate transfer of email to the consumer's email client, which was generally located on their personal or work computer. Now, with online email services prevalent such as Gmail and Hotmail, users are more likely to store emails online indefinitely, rather than to only keep them for less than 180 days. If the same emails were stored on the user's personal computer, it would require the police to obtain a warrant first for seizure of their contents, regardless of their age. When they are stored on an internet server however, no warrant is needed, starting 180 days after receipt of the message, under the law.

The ECPA also increased the list of crimes that can justify the use of surveillance as well as the number of judicial members who can authorize such surveillance. Data can be obtained on traffic and calling patterns of an individual or group without a warrant, allowing an agency to gain valuable intelligence and possibly invade privacy without any scrutiny, because the actual content of the communication is left untouched. While workplace communications are in theory protected, all that is needed to gain access to communiqué is for an employer to simply give notice or a supervisor to feel that the employee's actions are not in the company's interest. This means that with minimal assumptions an employer can monitor communications within the company. The ongoing debate is on where to limit the government's power to see into civilian lives, while balancing the need to curb national threats.

In 2011, The New York Times published "1986 Privacy Law Is Outrun by the Web," highlighting that:

Last year, for example, the Justice Department argued in court that cellphone users had given up the expectation of privacy about their location by voluntarily giving that information to carriers. In April, it argued in a federal court in Colorado that it ought to have access to some e-mails without a search warrant. And federal law enforcement officials, citing technology advances, plan to ask for new regulations that would smooth their ability to perform legal wiretaps of various Internet communications.

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The analysis went on to discuss how Google, Facebook, Verizon, Twitter and other companies are in the middle between users and governments.