People spend hours of their lives attached to technology: Cell phones, iPads and computers demand a significant amount of attention each day and store a huge amount of professional and personal information. Yet, the laws governing the privacy surrounding electronic communications date back to 1986.
That’s the year the Electronic Communications Privacy Act was first passed, and given today’s level of technology, the ECPA is severely outdated. The ECPA regulates how government can gain access to digital communications.
Essentially, what’s at stake is how much privacy people are guaranteed and how law enforcement officials are allowed to access information from electronic sources: When are probable cause and a search warrant required?
Recently, the Senate Judiciary Committee met to discuss updates to the ECPA, specifically email communications. Leading the charge is Sen. Patrick Leahy, D-Vt., who worked on the 1986 bill and believes updates are needed to meet today’s technology use.
The Senate Judiciary Committee approved a bill that would strengthen privacy regarding email communications. Currently, law enforcement officials do not need a warrant to search emails older than 180 days, but if the new bill becomes law, a warrant would be required for all email searches, regardless of origination date.
Experts project that issues beyond email will be hotly debated during the course of the next year, particularly when it comes to cell phones and third-party providers. The Fourth Amendment will take center stage in these debates, which will likely involve more stringent requirements for probable cause, or at least reasonable suspicion for collecting evidence from tech devices.
The Fourth Amendment covers search and seizure and someone’s reasonable expectation of privacy.
At any given moment, a person’s whereabouts can be documented by third-party providers, credit cards can be read upon entering or exiting a store, and an online search history can be compiled so that ads can be targeted to users next time they log on, explained Ronald DeWaard, partner at Varnum. He said cell phone data is a particularly powerful tool that law enforcement has been using for years to investigate suspects, and therefore changes could be met with resistance from some legislators.
DeWaard discussed a case in which he was involved in the late 1990s while working as deputy chief of the Major Crimes Division of the U.S. Attorney’s office in Miami. The case hinged on the ability law enforcement had to use a satellite tracking system, which they attached to a boat that was expected to eventually carry 2,000 kilograms of cocaine into the United States.
“You only needed an order from a magistrate back then that was based upon reasonable suspicion. … We couldn’t go and search the boat — we didn’t have probable cause, but we could put a (satellite) tracker on there. It’s basically just me signing a piece of paper saying somebody told us this has compartments (to store drugs), and the judge would sign it and we’d have to re-up it every few months.”
The technology allowed law enforcement to dedicate very little in terms of resources to a case that would become a massive drug bust and send many criminals to jail.
However, a 2012 ruling by the U.S. Supreme Court, United States v. Jones, has altered law enforcement’s ability to attach a GPS or similar tracking device to an individual’s property.
“Ron couldn’t do today what he did back then because of the United States v. Jones case,” said Gary Mouw, partner at Varnum. “Justice Scalia said, ‘What you did, guys, in putting on this GPS device to Mr. Jones’ car was, you trespassed upon an effect,’ which is protected by the Constitution. It’s personal property, but the Fourth Amendment reads you are protected against unreasonable searches and seizures of persons, places and effects.”
If the 1990s drug case occurred today, DeWaard said, he wouldn’t have been able to use the satellite-tracking device because authorities did not have probable cause to place the device. Today, however, law enforcement officers don’t have to attach a GPS device to someone’s car. All they have to do is get the location information collected by cell phone companies, which are considered third-party providers. In the past it was determined that information provided to a third-party provider did not have a reasonable expectation of privacy and so it didn’t require a search warrant. This information can be obtained through a subpoena, the requirements for which, DeWaard said, are very low.
In addition, there is the question of whether or not a cell phone is the equivalent of a container, making it searchable. Is a cell phone a computer? Computer searches require a warrant. Also, is there a reasonable expectation of privacy to information contained on a cell phone, particularly text message exchanges, which seem to many to be similar to phone conversations. DeWaard and Mouw note that phone conversations are very well protected under current laws. Making those determinations would influence whether a warrant is needed for cell phone searches.
DeWaard and Mouw explained that when someone is caught doing something illegal, like smoking marijuana while walking down the street, an officer has the right to pat the person down and open items in his possession. Additional evidence collected during the pat-down can be used.
If a cell phone is akin to a container, it could be opened and searched as such. Perhaps cell phone information could end up divided: Text messages would be fair game for law enforcement and emails or Facebook posts would require a warrant.
It’s not just cell phones that DeWaard and Mouw believe the public has come to expect should have a reasonable expectation to privacy, but also private company data collection from online search sites and even credit cards.
“We do have credit cards that have radio frequency identification tags that, apparently, can be read when you walk into a store,” said Mouw.
And for years now private companies have been collecting information on online searches. These companies have an incredible amount of information about personal behaviors, interests and how time is spent online. There is basically a permanent record of online usage, and the government could access it if desired.
“At some point it seems like the legislature has to do a better job. It’s the Wild West right now,” DeWaard said. “The information that people can get about you — at some point, there’s got to be some restrictions. … There are different search engines now that won’t allow you to track, but Google and Bing still do. That’s the same kind of thing as, I think, you get in these law enforcement issues. The principles of the Fourth Amendment that were previously applied are being challenged by the explosion in technology in both contexts, and the legislature and courts are going to have to determine where to draw the line.
“They don’t have the right to come inside my house and drop a camera down and see what books or magazines I am reading or what I do in my spare time inside my house. So do they have the right when I sit inside my house at night and surf the web and look at content — do they have the right to collect all that data? Well, up until now they do, because no one’s looked at it. Once you get a groundswell of support, these politicians are going to be looking at it.”
Legislators are expected to continue looking at the ECPA in 2013, and already are feeling pressure from their constituents who believe they have a reasonable expectation of privacy for much of that information.
“The balance is between what should law enforcement be able to do and do we want to live in a world where, basically, the government — and even private parties, to some degree — are tracking you on the Internet. Where are the limits going to be on your privacy?”