A Welcome Call for ECPA Reform

A lot has changed technologically, and otherwise, since the Electronic Communications Privacy Act (ECPA) was enacted in 1986. In addition, the law has never been a model of clarity. I litigated a case under ECPA in the late-90’s, McVeigh v. Cohen, representing an individual against the government when the Navy violated ECPA by obtaining online information about my client from AOL without a warrant or consent. In that case, the government actually argued, based on tha statutory language, that ECPA did not apply directly to it, only the online provider. (It lost that argument).

The need for greater clarity in and modernization of ECPA has led to a consortium including Microsoft, Google, AT&T, CDT and the ACLU calling itself “Digital Due Process,” whose tag line is “Modernizing Surveillance Laws for the Internet Age”. The group is calling for requirements that the government obtain a search warrant before obtaining any private communications or documents stored online and before it can track cell phone or other mobile device locations, that the government demonstrate to a court that the data it seeks is relevant to a criminal investigation before monitoring e-mail, instant messaging, text messaging and the telephone, and that there be better protection against bulk data requests concerning an entire class of users. The group hopes to eliminate “a patchwork of confusing standards that have been interpreted inconsistently by the courts”. FPF applauds this effort at ECPA reform.