Our stand for digital due process

The year was 1986. A gallon of gas cost 89 cents, Paul Simon’s Graceland won the Grammy for album of the year, and the federal Electronic Communications Privacy Act (ECPA), which governs how law enforcement can access electronic data, was signed into law.

A lot has changed since 1986. Gas is now measured in dollars and Taylor Swift (born 1989) won album of the year. All the while, technology has moved at record pace. But ECPA has stayed the same. Originally designed to protect us from unwarranted government intrusion while ensuring that law enforcement had the tools necessary to protect public safety, it was written long before most people had heard of email, cell phones or the “cloud” — the term used for programs helping people store personal data like photos and documents online. As a result, ECPA has become outdated.

This is why we’re proud to help establish Digital Due Process, a coalition of technology companies, civil rights organizations and academics seeking to update ECPA to provide privacy protections to new and emerging technologies.

Specifically, we want to modernize ECPA in four ways:

• Better protect your data stored online: The government must first get a search warrant before obtaining any private communications or documents stored online;
• Better protect your location privacy: The government must first get a search warrant before it can track the location of your cell phone or other mobile communications device;
• Better protect against monitoring of when and with whom you communicate: The government must demonstrate to a court that the data it seeks is relevant and material to a criminal investigation before monitoring when and with whom you communicate using email, instant messaging, text messaging, the telephone, etc.; and
• Better protect against bulk data requests: The government must demonstrate to a court that the information it seeks is needed for a criminal investigation before it can obtain data about an entire class of users.

We also created this video to help explain ECPA and why it needs updating:



You can read more about our proposal at our coalition website. In the coming months, we’ll meet with lawmakers, law enforcement officials and others to help build support for modernizing the law.

1986 was a good year, but it’s time our laws catch up with how we live our lives today.

Posted by Richard Salgado, Senior Counsel, Law Enforcement and Information Security