Americans are creating vast amounts of information about themselves every day. In emails, documents in cloud computing, instant messages, and social networking, the vast majority of this information lives today on servers not controlled by those users. This makes the data more secure, available from anywhere the Internet reaches, and cheaper to store. It also, however, makes it much easier for the government to spy on a citizen, under outdated laws and interpretations of the Fourth Amendment.
Since the late 1960s, Fourth Amendment doctrine has trended toward an interpretation that says that information placed in the care of a third party is not protected by the warrant requirement. The law written to address this interpretation’s effect on the Internet was passed in 1986, and is called the Electronic Communications Privacy Act. It is woefully out of date and prohibitively complex. As an example, it allows the government to demand emails stored with a third party (such as web email providers like Google’s GMail or Yahoo!’s email) without a warrant in most situations. A few lower level federal courts have found this approach to be counter to the Fourth Amendment, but the Supreme Court has not addressed the issue.
Until it does, Congress should step in and amend ECPA. CCIA is a member of the Digital Due Process coalition, a group of companies, non-profit organizations, academics, and former prosecutors dedicated to convincing Congress to revisit the law. The major goal of the coalition is to make sure that the law gives warrant protection to all content whether it is an email in a web service, a document on a cloud drive, or in some future technology or service not yet invented.