Blog Post #4

By Matthew Boyle | mboyle@flagler.edu

The San Jose Mercury News reported on March 31 that Google, Microsoft and other technology companies plan to ask Congress to update and improve the Electronic Communications Privacy Act of 1986.

Mike Swift of the San Jose Mercury News said the electronic communications companies consider the 1986 act outdated and ineffective.

The coalition of companies pushing for the Electronic Communications Privacy Act of 1986 overhaul calls itself, Swift said, Digital Due Process.

Other members in the group include Intel, eBay, AOL, AT&T and the American Civil Liberties Union.

Swift said Digital Due Process “wants to require police and other government agencies engaged in a criminal investigation to get a court order or search warrant before accessing any personal e-mail or other data stored on an Internet ‘cloud’ service such as Google Documents or Flickr. That also would be required before tracking a person's physical movements through their wireless phone network, monitoring real-time text messages or Instant Message conversations; or making data ‘bulk requests’ such as a list of everyone who visits a particular Web site.”

Digital Due Process will most likely be able to get the legislation through and revised. The overhaul might not be exactly what the coalition is looking for, but, considering the fact that the Electronic Communications Act of 1986 only requires law enforcement agencies to get a warrant from a judge for e-mails 180 days old or less, and anything older than that requires no warrant or judge approval, that part of expected proposals should pass right through Congress.

The parts about tracking people’s physical movements and making data “bulk requests,” for everyone who visits particular Web sites will probably face a much more difficult time getting through Congress. Also, even if Congresses passes such legislation, getting law enforcement agencies and officials on board with the changes will be difficult. Law enforcement officials have gotten far too used to the conveniences digital tracking and other data mining technologies.

E-mails will be easy to protect in the future, especially because they are identified in the original 1986 legislation. Other digital communication information like that on social media such as Facebook, Twitter, Myspace or Flickr, however, will be much more difficult to protect. Instant Message conversations and wireless phone network data, like a person’s physical movements, will be almost impossible to provide protection for.

The biggest problem legislators, digital communications companies and digital communications consumers will face is getting law enforcement agencies to give up the conveniences current lacks and loopholes in protection allows them.