Will NSA-gate push ECPA reform over the finish line?
Last week, civil liberties journalist Glenn Greenwald broke open the story of the National Security Agency grabbing everyone’s call information in a massive surveillance program called PRISM, which sounds like a Bond villain’s pet project. What you might not know is that, while the project is unethical, it’s actually legal via an outdated piece of legislation known as the Electronic Communications Privacy Act, or ECPA.
ECPA was written decades ago, long before emails, blogging, social media, and smartphones became common. ECPA doesn’t even require a warrant–not even probable cause–to collect the information they did. According to 18 USC § 2703, which ECPA modified, investigators only need to show “specific and articulable facts” that the information is relevant to a criminal investigation.
But let’s be honest: how could the entirety of the telecommunications traffic in America be relevant to a criminal investigation? It’s a fishing expedition, not a criminal investigation. And taking individuals’ private information is a clear violation of the 4th Amendment, which notes our rights to be secure in our persons, houses, papers (including, we believe, e-papers), and effects shall not be violated except when authorities have gone to the judge to acquire a warrant.
R Street supports updating ECPA to require warrants for collecting information as well as other updates to protect citizens’ privacy. We can only hope that the federal government follows in the footsteps of Texas in doing so.
