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What's next for the Electronic Communications Privacy Act?

Protesters affiliated with the Occupy Wall Street movement work on laptops on October 5, 2011 in New York City.

A bunch of people are in Washington, D.C., today saying no way. Senators Ron Wyden (D-Ore.) and Mark Kirk (R-Ill.) are joined by advocacy groups such as the Center for Democracy and Technology, the Electronic Frontier Foundation and the American Civil Liberties Union.

Signed at a time when Crocodile Dundee was the number one movie in the country, the Electronic Communications Privacy Act deals with the issue of when a law enforcement body can access electronic data. Ryan Calo, who runs the Consumer Privacy Project at Stanford's Center for Internet & Society, says, "This act is what governs the circumstances under which the government can get data on people's electronic communications like their emails that are being held in companies like Google's Gmail or Facebook. This act really goes to content of your communications and so the idea here is the government would try to get at what you said in an email."

As it stands now, the government can gain access to any communications over six months old using only a subpoena. If it's more recent than that, they need a warrant. At the time the law was passed, storage was more expensive, so companies were more likely to dump those files. Today, they are more likely to hold on to them. Times change, technologies change, practices change, but the law hasn't.

Gregory Nojeim is senior counsel at the Center for Democracy and Technology and he says, "The problem is the act hasn't been given a comprehensive update in 25 years since it's been on books. So you have things like new ways to communicate. We're all carrying cell phones today. Very few people had them in 1986 when the law was passed. So what does law say about location info cell phones generate? Nothing. And the result has been that courts have tried to fill in the blanks and they've been all over the map. There's no consistent rule about what law enforcement has to show to a judge in order to get records about where you are right now, where you're going to be for next 30 days or where you were for last six months."

But even if the law is updated and brought up to the world of 2011, what will it be able to do for the technology of 2012? Or 2020? Or 2036? Calo says it's a struggle whether to write these things in strict terms that will be handy today or in vague terms that could give general guidance in the future. "In the law," he says, "you see again and again this debate between whether we should be using rules which are very concrete and have the benefit of consistency and you know what they apply to, versus standards, which are these more loose or amorphous ideas. And course tech moves so fast, that standards seem to be the order of the day. It's a very difficult problem and it's not easy for legislators or courts to solve it."

Also in this program, another edition of Tech Report Theater. Our play: The Apology. It's about the strained relationship between BlackBerry and its customers. Can the couple make it work?

About the author

John Moe is the host of Marketplace Tech Report, where he provides an insightful overview of the latest tech news.
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