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The ECPA is So Bad Republicans, ACLU, Unify to Fix It

By William Peacock, Esq. on April 10, 2013 | Last updated on March 21, 2019

Grover Nordquist is a hardcore Republican/Libertarian/Conservative. The ACLU, on the other hand, trends strongly towards the left. Their viewpoints are often diametrically opposed, yet they, and we, and nearly all the big players in the tech industry can agree on one thing: the Electronic Communications Privacy Act is a steaming pile of horse feces.

Much like the Computer Fraud and Abuse Act (CFAA), which we ranted about yesterday, it is a tech law of the 1980s, meaning it was devised well before email, social networking, cloud storage, or even the Internet were widely available. Both are relics that could not conceive of the always-on, always-connected, nearly-infinite storage limits of the modern day “information superhighway” (had to toss that one in there).

Also much like the CFAA, the ECPA is a tool used by law enforcement to trample upon the rights of criminal defendants. While that law is used to bring up arguably bogus hacking charges for violating private contracts (websites' Terms of Service), the ECPA declares that any information left on a server for more than 180 days (or immediately, if the email has been read) is abandoned. Abandoned information is accessible without a warrant and only requires a subpoena.

No probable cause. No warrant. Just a sworn statement of "I think this will help my investigation, maybe."

Or as Nordquist and Laura W. Murphy (the Director of the ACLU's Washington Legislative Office) put it in a joint blog post for The Hill:

"Today, if the police want to come into your house and take your personal letters, they need a warrant. If they want to read those same letters saved on Google or Yahoo they don't. The Fourth Amendment has eroded online."

True indeed. We've complained about it. Google has too. And finally, Congress may be moving towards a solution for it.

Andrew Couts, writing for Digital Trends, describes Sen. Patrick Leahy's proposed amendments to the ECPA as "the Senate Bill that will keep the cops from pulling a Petraeus on your Gmail account." It has been widely speculated that the Gen. Petraeus sex scandal was precipitated by the FBI's use of the "180 day rule" to gain access to his email. The proposed amendments would, quite simply, eliminate the rule.

Who opposes such a common sense proposition? Law enforcement, of course. It's their job to investigate crime. This will likely make their job more difficult, though the Nordquist-Murphy blog post makes an excellent point: the simplification and modernization of the ECPA will clear up the confusion resulting from an outdated statute interpreted in different ways by various courts and federal agencies. Universal standards mean less confusion and easier compliance.

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