Bringing Internet privacy into the 21st century

Microsoft, Google, AT&T, and other tech industry leaders agree: We need to update the rules protecting our digital privacy

Finally, there's something Google and Microsoft can agree on: Our electronic privacy protections are in serious need of an overhaul. They, along with Intel, AOL, AT&T, the ACLU, and a dozen other household names, have formed the Digital Due Process coalition, aimed at urging Congress to modernize the Electronic Communications Privacy Act (ECPA) -- the only thing keeping Johnny Law from pawing through your digital life.

The ECPA was passed into law in 1986. To put that in context, the first Notes From the Field columns appeared in print issues of InfoWorld that year, back when I was just a cub reporter. Ronald Reagan was still president, even if he may not have been aware of it at the time. The Web was still three years from being invented. The term "spam" still referred to canned luncheon meat, and a 300-baud modem represented a state-of-the-art Internet connection.

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Yet the ECPA is still the digital law of the land. It's a little like using statutes written for the horse and buggy era to govern the Autobahn.

The technological breakthroughs that have emerged since the ECPA was drafted to include: mass adoption of email, video- and photo-sharing services, social networking, blogs, microblogs, Web mail, cloud computing, smart phones, GPS/cell tower tracking, and location-based services, to name but a few.

(Google has put together a cute little video summarizing it all on its Official Blog. Watch it now before it gets overrun with the usual April Foolery tomorrow.)

Today, the photos you took with your Kodak Instamatic back in the day and stuffed into a box in your attic are more protected from government snoops than the ones you snapped with your cell phone and uploaded to Flickr yesterday. The letters you wrote back when people actually wrote letters are more protected than an email you sent last year. A document on your hard drive is less prone to surveillance than one you stored in the cloud. And the courts cannot seem to agree on a consistent way to treat any of this stuff.

Or as the Digital Due Process site puts it:

A single email is subject to multiple different legal standards in its lifecycle, from the moment it is being typed to the moment it is opened by the recipient to the time it is stored with the email service provider. To take another example, a document stored on a desktop computer is protected by the warrant requirement of the Fourth Amendment, but the ECPA says that the same document stored with a service provider may not be subject to the warrant requirement. ... A district court in Oregon recently opined that email is not covered by the constitutional protections, while the Ninth Circuit has held precisely the opposite. Last year, a panel of the Sixth Circuit first ruled that email was protected by the Constitution and then a larger panel of the court vacated the opinion.

Mind you, Google/Microsoft/et al don't want to impede law enforcement or keep them from going after the bad guys; they just want to make sure they get a warrant first, as well as clear direction from the courts as to what is and isn't kosher when it comes to digital surveillance.

Right now, a federal court is hearing a case in Philadelphia that could determine limits on the amount and type of location information the cops can obtain about you without a court order. Parties like the ACLU and the Electronic Frontier Foundation are trying to ensure that location info won't be given out without probable cause, so that law enforcement can't go on location "fishing expeditions" to round up, say, the names and cell phone numbers of everyone who was in a certain area at a certain time. A new, updated ECPA would hopefully make cases like that moot.

It's a good idea, and it's good to see industry rivals -- as well as conservative libertarians groups and folks like the ACLU -- working together on big issues that affect us all. They can always get back to clawing each others' eyes out tomorrow.

Do we need modern laws for our modern digital lifestyles? E-mail me: But try to be circumspect; you don't know who else might be reading it.

This story, "Bringing Internet privacy into the 21st century" was originally published by InfoWorld.

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