A law enforcement officer must obtain a warrant before opening up mail boxes and reading postal mail. However, the same effort may not be occurring when the authorities wish to access an individual’s personal email. That is what the American Civil Liberties Union (ACLU) is seeking to learn through recent Freedom of Information Act (FOIA) requests to the FBI, Department of Justice and the IRS among other agencies. As a member of the Digital Due Process coalition, CAGW appreciates the ALCU’s efforts to discover whether the government is accessing personal email correspondence of citizens without a warrant.
The Electronic Communications Privacy Act (ECPA) was passed in 1986, long before wide spread use of the Internet. At that time, most congressional offices used typewriters for correspondence, and every letter, memo and communication had to be typed in triplicate in order to keep a record. It was unlikely that the drafters of the law had a full understanding of how commonplace the use of email and the digital off-site storage of data would become.
While ECPA does provide some protection from government access to remotely held information, it does not provide sufficient protection for email, mobile phone location information, or instant messages. ALCU’s FOIA requests demonstrate the need to reform ECPA to ensure that the protection of online information is treated in the same manner as information stored off-line. Given changes in technology over the past 25 years, it is high time that ECPA was updated.