Issues on the Electronic Communications Privacy Act and Possible Solutions

-- By MayaWakamatsu - 12 Mar 2022

1. Introduction

It is said that the Electronic Communications Privacy Act (ECPA) has some issues because of the gap between the current circumstances of information technology and the provisions of ECPA (Orin S. Kerr, The Next Generation Communications Privacy Act, 162 U. PA. L. REV. 373, 384 (2014) https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1546&context=penn_law_review). The dichotomy adopted by ECPA since its enactment in 1986 may not be appropriate for the current situation.

2. Issues on ECPA

Under ECPA, content information and non-content information are separated and regulated separately. Non-content information is subject to lesser restrictions than actual content (https://epic.org/ecpa/). Under ECPA, non-content information -subscriber records or transactional details about communications- can generally be obtained without a warrant, pursuant to an administrative subpoena, whereas ECPA requires government agencies to obtain a warrant when they access to content information. Another dichotomy is the distinction between the acquisition of real-time communications and the acquisition of stored communications. Under the Stored Communications Act, the government is able to access to many kinds of stored communications without a warrant, whereas ECPA requires government agencies to obtain a warrant when they obtain real-time information. This was a meaningful distinction at the time of the enactment of the law, when there was little information stored, but today, with the spread of the Internet and low-cost or free storage services, a lot of data is stored on the provider's servers, and it is difficult to distinguish between them.

3. Possible Solutions

3.1. California Electronic Communications Privacy Act

In contrast to ECPA, California Electronic Communications Privacy Act (CalECPA? ) provides stricter procedures. Except in emergencies when there is a threat to life or health, CalECPA? prohibits a government entity from compelling the production of, or access to, electronic communication information or electronic device information without a warrant. In addition, notice must be served upon or delivered to the identified targets of the warrant or emergency request (https://www.lawfareblog.com/so-whats-california-electronic-communications-privacy-act). For example, under CalECPA? , location-based information stored by cell phone companies is treated uniformly as a type of electronic facility information, regardless of whether it is stored in a third party's electronic facility or their personal electronic facility. State government departments must always request disclosure of location-based information stored by cellular phone companies with a warrant. In addition, the scope of the information sought and the nature of the research activities in which this information will be used must also be communicated to the identified targets of the warrant. CalECPA? applies only to California law enforcement officers, and it is clear that CalECPA? 's regulations are stricter than ECPA’s regulations concerning search on information. I believe that ECPA can fill the gap between the current circumstances of information technology and the provisions of the law by amending provisions to require government agencies to obtain a warrant when they access to non-content information or stored information.

3.2. Introducing Personal Servers at Home

I believe that ECPA should be amended as above mentioned, but I would like to think about another way to protect our privacy. Nowadays, many people use services like email, calendar, and SNS which are provided for free by firms like Google, Apple, or Facebook. Their data is collected, stored, and surveilled by the firms. If the government searches on information stored in the firms without a search warrant, our privacy will be threatened. As above mentioned, with the spread of the Internet and low-cost or free storage services, a lot of data is stored on servers, it is difficult to distinguish between content information and non-content information, or between real-time communication and stored communication. If we introduce personal servers at home rather than giving our information to the firms, government agencies need a search warrant to access to our data on personal servers at home under the Fourth Amendment. In this way, we can protect our privacy from government agencies and private firms.

4. Conclusion

In conclusion, I believe that we can protect our privacy by amending ECPA and introducing personal servers at home.

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