"Our privacy laws desperately need an upgrade," said Laura W. Murphy, director of the ACLU Washington legislative office. "Technology has evolved at a lightning pace, leaving our privacy protections out of date and ineffective. The Fourth Amendment guarantees us the right to be secure in our 'papers and effects' and that means something entirely different in the 21st century. Many of our 'papers and effects' are no longer tangible in the same way they used to be but still must be defended from the overreaching hands of government. Congress must step up and make the much-needed changes to the Electronic Communications Privacy Act."
Digital Due Process priorities include restricting the sharing of Americans' location information and records of electronic communications. Eighty-two percent of Americans own cell phones which transmit location information every minute of every day, and countless e-mails and text messages are sent daily. Digital Due Process is asking that ECPA be updated to require government officials to obtain a warrant based on probable cause before allowing access to any of those electronic records, just as they have always had to do for similarly sensitive personal papers. The ACLU believes the efforts being urged by the coalition to update ECPA are critical first steps, but is asking Congress to make even further changes to the law.
In addition to the changes being pursued by Digital Due Process, the ACLU is asking that Congress modernize ECPA to:
- Robustly protect all personal electronic information - Congress must ensure that current loopholes in our privacy laws are closed to ensure that electronic information, including most transactional communications, receive full warrant protection regardless of their age or nature.
- Institute appropriate oversight and reporting requirements - This would allow Congress to fulfill its oversight role and ensure adequate transparency to the public; existing reporting requirements for wiretap orders must be extended to all types of law enforcement surveillance requests.
- Require a suppression remedy - Just as non-electronic information illegally obtained by law enforcement is not admissible in a court of law, the same should be true of illegally obtained electronic information. The discrepancy in the law encourages government overreaching and must be changed to require a judge to bar the use of such unlawfully obtained information in court proceedings.
- Craft reasonable exceptions - Overbroad exceptions are also depriving Americans of their rightful privacy protection. Currently ECPA sometimes allows access to the content of communications without a true emergency, without informed consent or oversight and without prompt notice to the subject. These overly broad exceptions must be amended to properly safeguard Americans' privacy rights.