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    Congress Might Finally Update the Electronic Communications Privacy Act

    Written by

    Adam Clark Estes

    It’s tough to decide what’s most disturbing about how the U.S. government handles privacy when it comes to smartphones. One one hand, the quantity of data that the Justice Department and friends requests from service providers is increasing at an alarming rate. On the other, the quality of cell phone data is eclipsing what many thought possible when the laws that regulate digital privacy rights were written.

    We don’t just use this things for talking any more. Now, any given smartphone can provide law enforcement agencies with access to everything from minute-to-minute location data to your inbox. What’s probably most disturbing, though, is that lawmakers seem to have either no interest in legislating the new reality, or no idea what’s at stake.

    That could all change this week. On Thursday, the Senate Judiciary Committee will consider a series of updates to the Electronic Communications Privacy Act of 1986, which currently dictates how the government accesses pretty much every message sent online. That includes not only email but also Facebook updates, instant messages, Google Docs, text messages and tweets. And yes, you read that right.

    The law was passed in 1986, and despite significant advances in electronic communications since them — the World Wide Web, social networks and smartphones, for instance — it hasn’t been updated since then. It’s also how folks like the FBI justify tapping into cell phones and raiding inboxes without a warrant. According to the ECPA’s provisions, law enforcement agencies don’t need a warrant to access emails that are more than 180 days old. It says basically nothing about how smartphone data is protected.

    This is all to say that if you think that the data on your cellphone is protected by your constitutional right to privacy, you need to think again. The problem isn’t so much that the the ECPA gives law enforcement agencies full access to your smartphone data. The law simply doesn’t say either way, meaning that cops generally just go ahead and access the data. Different judges in different circumstances react to evidence found in seized smartphone data differently. Although the evidence could later be thrown out in court, police might as well seize the data while they can.

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