Jeff Gelles: Group is urging updates to a 1986 law that threatens digital privacy

LAMBERTO ALVAREZ
LAMBERTO ALVAREZ
Posted: January 05, 2012

As I'm reminded whenever I travel, the era of smartphones, websites, and cloud computing has brought wondrous advances to my life.

If I get lost, I can create an instant map, activate a GPS app on my iPhone, or call the person or business I'm trying to find. I can access my e-mail constantly - OK, not every advance is so wondrous. And I can get my personal data wherever I roam, whether around town, across the country, or overseas.

Is there any danger to all that access?

Yes, according to Digital Due Process, a broad coalition of technology firms, privacy experts, and advocacy groups focusing on a problem most of us would likely rather ignore: the fact that if you and I can get all that information anywhere and anytime, so can the most intrusive government investigators.

Its conclusion? U.S. laws have been outpaced by technological advances, especially in the 25 years since passage of the Electronic Communications Privacy Act of 1986. With bipartisan support in Congress - but against quiet resistance from law enforcement agencies - Digital Due Process is urging key updates to the law.

You don't have to be Franz Kafka, George Orwell, or even Ron Paul to recognize at least a theoretical threat to your liberty from the massive gray areas that have arisen as a result of e-mail, mobile phones, and Internet-everywhere computing. Just stop for a moment and think.

A quarter-century ago, government investigators needed a warrant to search your house or intercept your phone calls. They still do.

But what about tracking your location by your cell signal - which can be done precisely enough to sometimes identify the exact room you're in, according to University of Pennsylvania computer scientist Matt Blaze?

What about examining documents you've stored online, or data-mining e-mails stored by Google's massive servers, or looking into whom you've called and when on your Verizon cellphone?

Google alone reports that it received nearly 6,000 such requests from government agencies and courts in the United States during the first six months of last year.

Several years ago, Verizon executives told Congress that they received about 90,000 such requests each year from law enforcement agencies.

Right now, in most of the country, a prosecutor armed with a subpoena - a legal document that does not require a judge's signature - can demand e-mail and other private documents stored online, according to Jim Dempsey, vice president for public policy at the Center for Democracy and Technology and a leader in Digital Due Process' efforts.

"Most people would be astonished to know that their private material could be obtained by a prosecutor's subpoena without a warrant from a judge," Dempsey says.

He concedes that the legal twists and turns are enough to make most nonlawyers' heads spin. But he makes a strong case for why we all should want Congress to tighten protections.

In addition to online documents and tracking data, Digital Due Process wants to protect routing data for wireless calls - records of who's calling whom - and to bar using subpoenas to obtain bulk data, such as logs identifying everybody who viewed a particular Web page.

Dempsey notes that the proposals are targeted only at domestic law enforcement, not investigations focused on national security or international terrorism.

Above all, they would align the law with what most people probably expect: that electronic documents such as your e-mail are as private as you've always expected your phone calls to be.

The 1986 law, written when the Internet was far less powerful and robust, protected e-mails "in transit," but not e-mails stored on servers for more than 180 days. By today's standards, that's a pointless distinction - as the U.S. Court of Appeals for the Sixth Circuit has recognized for residents of a handful of central states.

Why are Digital Due Process' proposals not a slam dunk? Dempsey says one reason is that the Justice Department "has been quietly opposing any changes." Another is the perennial resistance of prosecutors to anything that limits their latitude.

"They don't like going in front of a judge," Dempsey says. "If you can sign the order yourself, why not?"

Of course, that's why we have the Constitution - and one reason having a former law professor as president was supposed to benefit us. It may be unavoidable that Verizon can track us everywhere we go - that's one of the prices of cellphone service. But there should be hurdles before the government can get that information, too.

Can you hear us now, President Obama?


Contact columnist Jeff Gelles at 215-854-2776 or jgelles@phillynews.com.

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