The furor over National Security Agency spying keeps turning up surveillance ops that are stomach-turning, but legal, thanks to too permissive law.  Some regulations were deliberately written to extend snooping powers, but as technology has advanced, the NSA and conventional law enforcement have acquired broad new spying powers simply because the law hasn’t kept pace.

One particularly lagging law, the Electronic Communications Privacy Act, has been targeted by civil liberties and tech policy activists.  A petition pleading for patches to the law, last updated in 2008, has attracted over 20,000 signatures on the White House’s site.

Under ECPA, the government doesn’t require a warrant to snoop on electronic records that have been abandoned, just like the police don’t need a judge’s order to be able to go through your trash.  Unfortunately, under current law, emails count as “abandoned” if they’ve been stored on a third-party server for more than 180 days.

That means that if you use Gmail, Yahoo, Hotmail and other cloud-based email services, your email is almost certainly fair game for investigators, unless you happen to have created your email in the last six months or so.  Instead of needing a warrant, government officers can download all your correspondence with just a signed statement that the information is needed for an investigation.  No judge required.

Congress has a variety of bills pending that could update ECPA for 21st century standards, from Sen. Rand Paul’s Fourth Amendment Preservation and Protection Act to the Electronic Communications Privacy Act Amendments Act of 2013, sponsored by Sens. Patrick Leahy and Mike Lee, but neither has gained enough traction to make it to the floor.

Major software companies release frequent updates to their programs, so they can serve their customers as the technological landscape changes.  But the federal government has no equivalent of Microsoft’s Patch Tuesdays, so even well-intentioned laws can drift and be distorted as the industries they regulate develop and change.  Congress’ slowness to update ECPA leaves consumers and companies exposed, treating our communication like so much trash to be picked over.

Featured Publications