Law isn't keeping up with technology

Posted: July 16, 2012

The fast pace of technological progress over the last two decades has led to a growing lag between the introduction of new communications devices and the privacy laws that regulate their usage. This has allowed law enforcement authorities to exploit the situation.

The New York Times recently reported that several major cellphone companies have been receiving an increasing number of requests for data from legal authorities at every level.

A congressional inquiry led by Rep. Edward Markey (D., Mass.) found that the cellphone companies received 1.3 million demands for information last year, and that such demands have been increasing at rates climbing up to 16 percent over the past five years.

The types of data requests have also changed. Police are asking cellphone carriers to help them locate, rather than eavesdrop on, individuals. Cellphone companies have been asked to identify hundreds, sometimes thousands, of customers located near a certain cell tower at a given time.

Law enforcement agencies have come to realize that the rules for obtaining the location and transaction data of cellphone users are particularly vague, which makes such information both easier and cheaper for them to acquire.

A U.S. Supreme Court ruling earlier this year that the police should obtain a search warrant before tracking a person by using a GPS device has only further muddled the issue. In 2010, a federal appeals court ruled that probable cause alone justified granting a warrant to obtain cellphone data. A clearer ruling by the Supreme Court is needed to protect the Fourth Amendment rights of cellphone users.

Even better, Congress should pass a bill that has been stalled in committee that would update the antique Electronic Communication Privacy Act of 1986 to better reflect modern technology.

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