October 21, 2011
Today marks 25 years since President Ronald Reagan signed the Electronic Communications Privacy Act into law in 1986. In those years, technology has advanced at a rapid pace, and has given the government countless new tools to investigate and prosecute crime.
The government can today collect information about the private lives of citizens, from their communications, private documents, social networking sites, all the way up to their minute-by-minute location. Usually they can gather this information without even leaving their desks. More power to fight crime is a good thing, but with power inevitably comes the possibility of abuses of that power, and the need for judicial oversight to counter and check any such abuse — designed by the drafters of our Constitution — has not evolved to address this new technological reality.
Sadly, abuse of power is not a hypothetical problem. Documented excesses on the part of government extend all the way from an FBI inspector general report from last year on the inappropriate use of National Security Letters, down to small town sheriffs using mobile phone location data to check in on a daughter’s latest boyfriend.
Ensuring a proper respect for the rule of law and for personal privacy on an institutional level is vital. Self-policing can not be exclusively relied upon, however. The Fourth Amendment is an important tool to ensure outside oversight in an effort to address possible abuse.
The original ECPA was an effort by Congress to enhance that oversight, and it did well for the time. Unfortunately, it has not kept up with the greater opportunities for abuse that have come alongside the great economic and social opportunities of new technology.
The existing law is no longer adequate to control governmental abuse. Congress must step up again, as it did in the mid-80s, to apply fundamental Constitutional principles.
CCIA strongly supports the much needed reforms to the Electronic Communications Privacy Act as laid out by the Digital Due Process Coalition, and urges Congress to enact them without delay.