Digital Privacy Shouldn't Depend on a Law Written in the Time of Stranger Things

The Electronic Communications Privacy Act was passed in 1986.

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Data
Dreamstime

One of the most powerful arguments for limiting the size and scope of government is the inability of politicians and regulators to keep up with the pace of technological change. Case in point: Congress has not updated the rules regulating when and how law enforcement may access stored online data since the time period depicted in Netflix's 1980s nostalgia-heavy hit, Stranger Things.

The Electronic Communications Privacy Act was passed in 1986, when data storage was considerably more expensive and primitive. At the time, it was not common for data to be kept online for very long. As such, the ECPA considers emails held online by a third party for more than 180 days to be abandoned and thus open to access by law enforcement without a normal warrant. Sure puts that cluttered inbox in a new light, doesn't it?

Now that free online email hosts are commonplace and terabytes of cloud storage are available at little cost, the ECPA is a troubling anachronism. Today's internet users expect their data to be protected from prying government eyes for as long as they choose to store it.

There are additional reasons driving the need for data access reform. One was clearly demonstrated in July, when the 2nd U.S. Circuit Court of Appeals rebuked the Justice Department after a three-year legal battle with Microsoft, which hosted data for an Irish citizen being pursued by U.S. authorities. The data was being kept in a server located in Ireland, yet the U.S. government insisted it had jurisdiction to demand access just because the company that held it is a subsidiary of Microsoft, an American corporation.

The government sought to use a warrant that was issued pursuant to a statute under the ECPA, which provides no authority for access to data held overseas. The government officials most likely made this overreach rather than go through the mutual legal assistance treaty, or MLAT, process—which would have enabled them to work with the appropriate overseas authority—because of the fact that MLAT procedures are also cumbersome and outdated.

There is a bill making its way through Congress that attempts to address these issues. It's the International Communications Privacy Act. The bipartisan bill—introduced by Sens. Orrin Hatch, R-Utah, Chris Coons, D-Del., and Dean Heller, R-Nev.—presents significant changes meant to reduce the temptation for law enforcement to overstep its bounds as it did against Microsoft by making MLATs viable options through greater transparency and accountability. More importantly, if implemented, it would codify into law a simple and clear standard: A warrant should always be required to access private information from a third party.

The reforms in the ICPA would move us away from the current '80s drama. It also seems that the package could even move through Congress during a contentious election season because it safeguards consumer data while also acknowledging that there must be legitimate and accessible law enforcement tools to pursue digital evidence across borders.

Businesses that operate or store data in multiple jurisdictions would also benefit from clearer rules regarding their users' expectations of privacy and avoid unnecessary and costly legal battles.

No one really disputes that it's time to update the ECPA, and the ICPA has support from key leadership figures from both parties. That said, if legislators were known for their swift action, the law would never have been allowed to become so outdated in the first place.

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  1. Can you imagine the steaming turd Congress would put in its place, though? Some SOPA-quality crap.

    1. That’s my concern. You can’t really expect any other outcome when Congress is full of bought-and-paid-for hacks and anti-Americans.

      1. If an American and an anti-American meet, do you get a big explosion?

    2. Well, they already went through the backdoor on Net Neutrality so we can rest assured that if this legislation fails to pass the Executive Branch will open up that pen case.

      1. You think the pen actually goes back in the case? It gets far too much exercise to require a case.

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  2. Hmm, I thought we already had a law that covers this, one predating even the hoary eighties: I think they call it “the Fourth Amendment”.
    Think of all the bullshit that would be bypassed if the government would just obey the Constitution.

      1. But I’m not the only one….

        1. Well done.

    1. Obviously privacy should not be governed by a document dating before there were electronic devices!

      Seriously, what is with the Ezra Klein level argument against the 86 law? When it was is an irrational reason to ditch it. That it stinks should be enough, it is explaining that too hard?

  3. OT, but I think Gary Johnson just blew himself up this morning:

    http://www.msnbc.com/morning-j…..0358979962

    1. Aleppo – one of those diseased people who have bits fall off.

      1. That’s kibbles-n-bits, Aleppo’s the one that comes in a can.

    2. Here’s the thing. I consider myself to be fairly well informed. I know about the Syrian civil war, the refugee/ humanitarian issues, the fact that there’s a lot of innocent people caught between Assad’s forces and rebel groups and ISIS blah blah blah…

      But if I was talking to some people about something completely different, and one of them – out of the blue – blurted out “What about Aleppo?”, I’d probably fuck up my response too. Furthermore, maybe I’m not as well informed as I like to think, because I can’t name specific cities in Syria either (other than Damascus).

      If that dickhead had just asked “What about the Syrian refugee crisis?” I’m sure Johnson would have handled it a lot better. I suspect the reason the dickhead chose to phrase it the way he did is because he wanted to make sure he made Johnson look like an idiot on national TV. Because the MSM is aware that Johnson is pulling support away from Hillary in at least equal proportion to what he’s pulling away from Trump. That and we’re getting down to the last two months of the campaign, and it’s time to “get serious” and focus on the “real” candidates: the ones from the two party duopoly. So they have to make sure that they get the 3rd party candidates to embarrass themselves by asking them gotcha questions that most of their viewers couldn’t answer either and then pointing and laughing at the “idiot” who doesn’t know what Aleppo is.

      1. I think the campaign’s official word-smithed response is pretty good, though no one will ever see it because the MSM won’t report on it, so all anyone will know is that “Gary Johnson was that guy who didn’t know what Aleppo was” even though most people in this shithole of a country probably couldn’t even find Syria on a map:

        This morning, I began my day by setting aside any doubt that I’m human. Yes, I understand the dynamics of the Syrian conflict ? I talk about them every day. But hit with “What about Aleppo?”, I immediately was thinking about an acronym, not the Syrian conflict. I blanked. It happens, and it will happen again during the course of this campaign.

        Can I name every city in Syria? No. Should I have identified Aleppo? Yes. Do I understand its significance? Yes.

        As Governor, there were many things I didn’t know off the top of my head. But I succeeded by surrounding myself with the right people, getting to the bottom of important issues, and making principled decisions. It worked. That is what a President must do.

        That would begin, clearly, with daily security briefings that, to me, will be fundamental to the job of being President.

      2. So they have to make sure that they get the 3rd party candidates to embarrass themselves by asking them gotcha questions that most of their viewers couldn’t answer either and then pointing and laughing at the “idiot” who doesn’t know what Aleppo is.

        I forgot to add: they’ll do this to Jill Stein once they’re done destroying Johnson’s campaign. And anyone else who appears to be a potential threat to Herself winning.

  4. Our founders never could have foreseen that “speech” and “the press” would include electronic communications so nothing they might have to say on the matter has any relevance whatsoever. Just like “persons, houses, papers, and effects” certainly couldn’t have included automobiles or cell phones or anything on a computer because that stuff didn’t exist back then. I’m pretty sure the quartering of troops stuff and the trial by jury stuff really doesn’t matter either because they were only talking about homes and courthouses that didn’t have electricity or indoor plumbing, not today’s totally different homes and courthouses.

  5. You know, if it ain’t broke…

    1. Break it?

      That seems to be the modus operandi for the Feral Gubbermint.

  6. What is this “privacy” thing you speak of? Wait a minute! You actually want to hide your business from our glorious Big Government? Who cradles all of us in her loving arms every minute of every day? What kind of monster are you?

  7. One of the most powerful arguments for limiting the size and scope of government is the inability of politicians and regulators to keep up with the pace of technological change.

    I have to disagree with that – it’s not only not a powerful argument, it’s a red herring. The argument is a bad argument because it suggests that if the politicians and regulators were better at their jobs then a more powerful government would be acceptable. It’s little different than the “right Top Men” argument and now we’re off chasing the false scent, arguing about whether or not the right Top Men or the right policies and regulations are being used. Once you’ve accepted the principle of the thing, the details of what exactly you’re going to do with all the camel shit piling up inside the tent isn’t all that important.

    Sometimes your only resort is to the ultimate argument of “because I said so and if I hear one more peep out of you you’re getting the belt.” It’s bad enough the government keeps arguing long after we’ve told them we’re not having this shit – but when they start the “you’re not the boss of me” bit*, doing what you’ve specifically told them they’re not allowed to do, that is simply an intolerable questioning of your authority and if you don’t nip that right in the bud, and nip it hard, guess what? – you’re not the boss of them any more.

    1. *I was trying to find the exact quote and who said it, but one of the bigwigs in the “intelligence community” during the debate over Snowden and the Patriot Act and all that basically said none of that legal stuff really mattered because his job was to keep America safe and he was going to do whatever it takes to get the job done regardless of what the law said. The fact that that fucker was not fired right on the spot or drug out into the street and beat to death – hell, that there wasn’t even any sort of outcry over what he’d just said – told me it’s already too late to try to assert that our servants are not our masters.

  8. As such, the ECPA considers emails held online by a third party for more than 180 days to be abandoned and thus open to access by law enforcement without a normal warrant.

    The third party is your IT contractor in most cases. Why can’t they just obey the terms of the contract?

    1. Just because you are too lazy to clean out your inbox, it doesn’t mean the information is abandoned. It’s just an absurd assumption. Especially as “the cloud” becomes more of a standard way that people save information.

      1. What needs to happen is judges and juries need to start regarding it and rebuking it as such.

        Unless the email says “I plan to assassinate a foreign dignitary 3 yrs. from now.” it’s abandoned or useless information that has/had no bearing on the issue at hand. Then service providers can feel more free to tell the FBI et al. to get the fuck out of their user’s dumpsters.

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