Happy 25th Birthday, ECPA! It’s Time for A Refresh

 

The Electronic Communications Privacy Act (ECPA), the statute that governs government access to electronic information, was enacted 25 years ago. When it was passed, ECPA was a cutting-edge statute.  The pace of technological innovation has left ECPA outdated, however, and it urgently needs reform.

ECPA was designed to deal with the technology of a 1986 world, where cell phones cost thousands of dollars and were the size of bricks, the Internet was confined to a handful of labs and military facilities, and GPS technology was not really publicly available. Take a look at this still working example of a technology that is a contemporary of ECPA. This old Compaq III Portable was the cutting edge of mobile computing technology almost a quarter of a century ago. It only weighs 20 pounds, cost about $5,000-6,000, and has an an Intel 286 processor with 134 thousand transistors. By comparison, most recent Intel computer processors have between 150 and 820 million transistors (and cost a lot less too).

As apparent from this example, technology has undergone tremendous advancement since the inception of ECPA, and it will continue to evolve rapidly. The world is witnessing an explosion of connected devices, and within the next few years billions of additional devices will be connected. As part of this increased connectivity, Intel believes individuals will be able to seamlessly move their data between devices, with individuals having the same user experience across different devices. We call this seamless connectivity between devices the computing continuum.

However, in its current form, ECPA is unable to appropriately address today’s technology, not to mention tomorrow’s technological progress toward the computing continuum. For example, under ECPA, email is subjected to different legal standards while it is being typed, when it is opened, and when it is stored by an Internet Service Provider, and there are also different standards depending on whether data is stored on a PC or on the cloud. Moreover, ECPA has been interpreted inconsistently by courts across the country, leading to law enforcement and industry confusion.

Intel, along with other members of the Digital Due Process coalition, has called for a number of specific reforms for ECPA. Senator Leahy’s ECPA Amendments Act of 2011, and Senators Wyden and Kirk’s GPS Act, each contain some of the coalition’s recommendations, and are a good foundation for Congress to take up this issue. 

ECPA reform would greatly benefit consumers, the government, and industry. With a reformed ECPA, consumers would gain the assurance of consistent and clear privacy protections. Law enforcement also would have clear rules to follow. Industry, too, would have clear and consistent rules, freeing up resources to spend on innovation.  

So Happy Birthday, ECPA!  Sorry to say, but you’re looking pretty old.  I think it’s time for a facelift courtesy of Congress. 

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