For business’ sake, Gov’t surveillance law must be reformed

Editor’s note: This is a guest post by Mark Stanley and Harley Geiger from the Center for Democracy & Technology (CDT), a non-profit public interest organization based in Washington, DC. CDT’s mission is to keep the Internet open, innovative, and free. For more on ECPA reform visit CDT’s Wiretap/ECPA page.

“One who does not wish to disclose his movements to the government need not use a cellular telephone.” – DoJ reply brief, page 12

Last week, both the Senate and House held hearings on reforming the Electronic Communications Privacy Act (ECPA). Passed in 1986, ECPA specifies rules for government access to email, text messages, and other digital communications. At the time ECPA was written, Congress wanted to protect then-emerging Internet services from inappropriate government access so people would trust the services enough to make them commercially successful.

Of course, a lot has changed in 24 years, and the law is in serious need of reform. ECPA, for example, provides no clear standard for the government’s ability to track our movements. Cell phones, increasingly indispensible to modern life, broadcast the location of their owners every few seconds. This location information is recorded and is more easily available to law enforcement than one might think.

U.S. courts have split on what legal process is required for the government to obtain location data from cell phone companies. The majority of courts require the government to obtain a warrant based on probable cause to believe that criminal activity is afoot. However, a minority of courts —perhaps a third — says the government does not need a warrant. To add to the confusion, the courts are split on whether there should be one standard for real time tracking and a different one for access to historical location data; other courts have been uncertain on whether to distinguish between different technologies for tracking. The result is a legal mish-mash that is burdensome for both businesses and law enforcement officers to apply and that leaves cell phone users vulnerable to inappropriate government surveillance.

This is not just bad for civil liberties, it’s bad for business. A 2010 study forecast that revenues from mobile location-based services could grow to more than $12.7 billion by 2014. But that growth could be stunted if users refuse to adopt the services because of privacy concerns. Indeed, consumers recently cited privacy, including fear of being tracked by government, as a top concern when it comes to location-based services. This concern is not unfounded. A Sprint company manager revealed that Sprint Nextel disclosed to the government customer location data more than eight million times over a period of 13 months in 2008-2009. (It is not likely eight million customers were tracked – some individual accounts may have been pinged thousands of times.)

ECPA needs to be updated to reflect the enormous advances technology has made in the past quarter century. The Center for Democracy & Technology has put together a diverse coalition of major tech companies, public policy think tanks, and advocacy groups under the name Digital Due Process. The coalition is dedicated to reforming ECPA in a way that enhances user privacy, fosters innovation, and preserves the ability of law enforcement to conduct effective investigations. Its proposed updates to the law include requiring a warrant for cell phone tracking.

ECPA helped establish user confidence in digital communications, the growth of which has been critically important to the U.S. economy. As technology leaps ahead, our laws must keep pace, providing businesses with the clarity they need to innovate and consumers with the assurance of privacy they need to adopt new services. The Department of Justice’s suggestion – stop using cell phones if you don’t want to disclose your location to the government – is simply an economic dead end.


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Hercules holds a B.Comm Finance from Ryerson University in Toronto, Canada. He is a Chartered Financial Analyst (CFA) level 3 candidate. He was previously a contributor at FiLife, a finance website owned by Dow Jones and IAC. Write to hercules@business2press.com
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