2012 07 15 NYT The End of Privacy? – NYTimes.com
The End of Privacy?
Cellphones, e-mail, and online social networking have come to rule daily life, but Congress has done nothing to update federal privacy laws to better protect digital communication. That inattention carries a heavy price.
Striking new data from wireless carriers collected by Representative Edward Markey, a Massachusetts Democrat, and first reported last week by Eric Lichtblau of The Times, showed surging use of cellphone surveillance over the past five years by law enforcement agencies at every level and for crimes both mundane and serious.
Wireless carriers reported responding to a whopping 1.3 million demands from law enforcement agencies for subscriber information, including location data, calling records and text messages. The number of people whose information was turned over is almost certainly much higher because a single request for a cell tower “dump” could sweep in the names of thousands of people connected to a given tower at a certain time.
As cell surveillance has ballooned, federal and local officials have come to rely less on wiretapping to eavesdrop on conversations, probably because cell tracking is less time consuming and less legally difficult to manage. In most cases, law enforcement officers do not need to hear the actual conversation; what they want to know can be discerned from a suspect’s location or travel patterns. And location data can be as revealing of a cellphone owner’s associations, activities and personal tastes as listening in on a conversation, for which a warrant is mandatory.
As a result, warrants for wiretaps, which are subject to stringent legal standards used for decades, declined by 14 percent last year, to just 2,732 nationwide. The legal standards applied to cell tracking and other forms of digital monitoring are more lax and inconsistently applied, with many law enforcement agencies claiming a right to such data without having to show a compelling need or getting detailed vetting by a court.
Clearly, federal laws need to be revamped and brought into line with newer forms of surveillance. A good place to begin is the Electronic Communications Privacy Act, the main federal statute governing access to electronic information. The act has not had a significant overhaul since its passage in 1986.
Senator Patrick Leahy, the Judiciary Committee chairman and lead author of the 1986 law, introduced a promising bill last year that would amend it in important, sensible ways. It would require a probable cause warrant for access to e-mails and other electronic communications no matter how long they were saved or where they were saved, whether in a personal computer or an online storage system. Under current law, there is no warrant requirement after an e-mail has been stored for 180 days.
Electronic correspondence deserves no less protection than letters kept in a drawer. The government would still be free to access blog postings and other publicly available content, and exceptions to the warrant requirement would remain for emergencies and intelligence investigations. Similarly, existing law requires a warrant for the government to access photos, calendars and other private data stored on laptops or desktop computers at home, but not for the same files stored with a service provider in the “cloud.”
The Leahy bill would also provide some protection for location information from cellphones or GPS systems, though probably not enough. It would require a warrant for law enforcement agencies to access real-time location data, but not past location records. The warrant rule should cover both, the sensible standard in a bipartisan location privacy bill offered in the House by Jason Chaffetz, a Utah Republican, and in the Senate by Ron Wyden, an Oregon Democrat.
Both the Leahy bill and the location privacy bill break away from the traditional “third-party doctrine,” which says there is no reasonable expectation of privacy if the information is held by third parties, like the cell carriers. Unfortunately, the Supreme Court shied away from eliminating that doctrine when it rightly ruled this year that having the police attach a GPS device to a car constitutes a “search” under the Fourth Amendment. The Leahy bill has not attracted any Republican co-sponsors. That is all the more reason to put it before the Judiciary Committee and begin a debate on this critical issue.