Way back in 1986, when digital communications was in its infancy, Congress passed the Electronic Communications Privacy Act (ECPA).  Originally conceived as an amendment to the 1968 wiretap law, ECPA’s sponsors intended to cover new technologies like email and online networks.

At the time lawmakers thought that it would be updated regularly as new technologies were developed, but it’s been 25 years, and so far, only the judiciary has taken steps to bring the law in line with dozens of new technologies — from webcams to GPS trackers to Google Street View to WiFi interception — that weren’t available when the law was originally written.

Several attempts up update the law never made it out of committee — notably a broad attempt in 2000 co-sponsored by Ron Paul which drew fierce opposition by Republications, Democrats and the technology industry.  Most recently,  overhaul was attempted in three bills in the U.S. Senate all still pending action by the Senate and not yet out of committee in the house.  (For more on these, read this May article in this blog.) 

Meanwhile, a class-action lawsuit widely called the “WiSpy case” against Google has wended its way slowly through the court system, has reminded anyone paying attention just why ECPA reform is overdue.  According to CNN, Judge James Ware, chief judge of the U.S. District Court for the Northern District of California, ruled that some of the charges against Google can proceed — while others can’t. 

Judge Ware ruled that Google’s Street View vehicles couldn’t be sued in the class action for breaking several states’ laws when they harvested usernames, passwords and emails from consumers’ and businesses’ wireless networks (because data didn’t qualify as “lost property”), but allowed the claim that the company violated federal law to continue.   In his ruling, Judge Ware said that technologies NOT defined by ECPA as excluded “publicly available” transmissions are therefore private.

My old friend Gregg Keizer wrote in Computerworld that this case is just another in a whole long series of cases that show that the ECPA is a complicated statute that’s in dire need of overhaul.  While I couldn’t agree more, I’d also like a national definition on just what kinds of private data individual citizens can protect.  Americans are routinely asked to hand over far more data than citizens of European countries — who hand over more data than those in Australia and New Zealand. 

The cartoon picked to illustrate this blog post sums up part of the problem.  A relative is absolutely insistent that people with nothing to hide shouldn’t worry about things like racial profiling, HIPAA, FERPA and fourth and fifth amendment protections.  She feels, for instance, that immigration status determines eligibility for medical treatment, school enrollment, and other public services.  She wants mandatory verification of that data at schools and hospitals before service to children — even if the child is an American citizen.   

She sees no problem with forcing some people to prove their citizenship while others have no requirement to do so — and none in warrantless wiretaps or searches against others.  Yet, when it comes to herself and her adult children, she’s a fierce fighter for privacy rights —  filing no fewer than six requests to have genealogy information pulled off websites after a cousin posted a family tree that her own father had published during his lifetime with the note that it be “freely copied and distributed”. 

I think that’s a big part of the problem that Congress is having in passing an update to ECPA — a lot of Americans want law enforcement to use technology to go after “them” (whoever they are), but nobody wants technology used against “us” (meaning me and  my family).

That’s why this particular case is so interesting to me — not only did it create a precedent for ruling that data isn’t property, which frightens me for a number of reasons, but it also shows the deep divide in our country in how we feel about the unwritten but highly valued right to privacy.  I’ll be following this case — and all the others — with interest as they move forward.  I also expect Congress to take some action on updating ECPA soon — but probably not soon enough, with another election cycle looming.

Cartoon credit: Offered under a creative common license by Australian cartoonist Grea through her website.