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Sen. Leahy to Update ECPA

Privacy in 2013

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Sen. Leahy to Update ECPA
Getty/Danita Delimont

When giving consideration to online privacy and protecting our digital identity, and I have proposed that the type of information being collected should govern how it is protected. Recent articles like Scott Cleland's opinion and The Daily Caller, highlight the growing consensus that our personal information needs to be better taken care of. Cleland says this is a central concern in Congress this session. And once again, Senator Patrick Leahy is leading the charge.

Leahy is Chairman for the Senate Judiciary Committee, along with Bob Goodlatte. Their names are often associated with privacy when it interfaces with technology. Their take on personal privacy seems to lend itself toward consumer protection. They were responsible for the update to the Video Privacy Protection Act last year, which allowed Netflix to share information on Facebook about what you're watching. There was apparently some concern about privacy issues surrounding these disclosures, which stemmed from obsolete laws dealing with outdated technology. (Seriously, except for collectors, who even bothers with VHS these days?)

Leahy pointed out that technology has advanced far quicker than the law has, and there are gaps that need to be filled. It's nice to know that someone in his position recognizes this fact, and is stepping up to the plate to take a swing at fixing things.

Privacy advocates appreciate Leahy's view on privacy. The New York Times quoted him as saying, "Like many Americans, I'm concerned about the growing and unwelcome intrusions into our private lives in cyberspace. I also understand that we must update our digital privacy laws to keep pace with the rapid advances in technology." From a privacy advocacy perspective, this is exactly what we want to be hearing from our legislators. And Leahy is already well-known for his efforts in cyber security and personal privacy.

The Senate Judiciary Committee has gone on the record saying they intend to overhaul the Electronic Communications Privacy Act (ECPA) and update it to protect information collected by current technology. This has been a common theme for the past couple of years under various other proposals, including the Mobile Device Privacy Act (passed) and the GPS Act (not passed) last year. It seems obvious that our legislators are looking for something proactive to do in the face of an electronic world where digital identity can dramatically impact our personal lives.

Some of the things we might hope to find in this update would include certain protections related to social media like Facebook, Twitter and YouTube. Last year, Judge Sciarrino in New York bulldoged Twitter into giving up records about tweets sent by Malcolm Harris, who was accused of organizing an Occupy protest. The case is still under appeal, since Twitter has always said you own your Tweets, and Harris refused to provide them himself, under the Fifth Amendment. This has forced twitter to defend their user agreement, or they may be dragged into court more and more frequently as social media is being used in court cases.

This may very well be the most important topic in the coming years, since there is a growing trend for police, private investigators, and other law enforcement professionals to use social media to build a case against someone. On the one hand, there is no expectation of privacy yet, since we give the information away freely online, for anyone to read. On the other hand, the spirit of the Fifth Amendment is to keep law enforcement from forcing you to give information to help their case.

With the building of a massive data warehouse in Utah, the Department of Homeland Security has made it very obvious that data collection is going to happen whether we like it or not. This warehouse will be capable of holding every piece of information generated by every person on the face of the planet for the next hundred years. It would be easy to hope our Federal government would not drop that kind of cash for a speculation project. With that in mind, it does not seem there will be much option and whether or not our digital identities are stored by our government.

And while law enforcement is angling to avoid getting search warrants to search through this information, it becomes a scary prospect indeed. I have jokingly quipped that the Internet may need to have a Miranda disclosure on the opening page before you can go online. Sadly, it may not be far from the truth.

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