Electronic Communications Privacy Act Amendments Act of 2011


English: Official photo of Senator Patrick Lea...

English: Official photo of Senator Patrick Leahy (D-VT) (Photo credit: Wikipedia)

The Electronic Communications Privacy Act Amendments Act of 2011 (S. 1011) is a bill introduced by Senator Patrick Leahy  (D-VT) in May of 2011.  In a perfect world the intent of the law would, require police to obtain a search warrant to access private communications and the locations of your mobile devices. An important exception however maintains the status quo.  It does not require a warrant for police to look at your historical whereabouts obtained by recording the movements of your cell phone, even if the location data are only a few hours old.  I’m not sure why they want to know of your Foursquare check ins but I digress.

The U.S. Department of Justice, (DOJ) is simply outraged at the thought of the requirement for a search warrant for citizen historical whereabouts  and the movement of your cell phone.  According to an associate deputy attorney general, such a requirement, for either historical or live tracking data would,  “hinder the government’s ability to obtain important information in investigations of serious crimes.”

Leahy has rewritten his original bill due to DOJ and other law enforcement agency concerns.  The bill in its current form would allow the Federal Bureau of Investigation (FBI) and Homeland Security, full access to individuals Internet accounts with no notification to the account owner nor a judge.  Overall the bill would allow more than 20 federal agencies  to access  your e-mail, Facebook posts, Google Docs, and Twitter direct messages.

Internet social media giants Google, Twitter among others freely disclose government requests for access to user information.  However, with more than 200 million users in the U.S. and Canada, and more than one billion active users world wide, Facebook is not publishing government requested data.

Electronic privacy has come again into the forefront with the recent resignation of former director of the Central Intelligence Agency (CIA), David Petraeus.  If the director of the CIA is unable to keep his e-mail secure, how is “John Q. Public,” suppose to do so?

The Fourth Amendment to the United States Constitution, comes into play here.  This is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.  The Fourth Amendment requires any government agent to obtain a warrant from a judge before searching physical property. This included your computer, laptop and any mobile devices.  However  under a 1986 law, the Electronic Communications Privacy Act (ECPA), a warrant isn’t typically required to access emails older than six months old as they are considered to be “abandoned.”

For the past seven years the Electronic Frontier Foundation (EFF) has been warning that the government’s attempts to track a person’s physical location through their cell phone requires a search warrant. (ie: Fourth Amendment rights)  Given that cell phone or other mobile device tracking can give the government a snapshot of a person’s life through their movements, a search warrant is necessary to safeguard against privacy intrusions.

It’s evident that our Congressional Legislators have failed to keep up with technology and our electronic privacy law protections.


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