Electronic privacy

  • April 11, 2014
    Guest Post

    by Sandra Fulton, Legislative Assistant, American Civil Liberties Union

    During the long, hard fight to bring the outdated Electronic Communications Privacy Act (ECPA) into the 21st century, advocates have run into the most unlikely of opponents: the Securities and Exchange Commission (SEC). Yes, the SEC—the agency charged with regulating the securities industry—has brought the ECPA update to a screeching halt. Yesterday the ACLU, along with the Heritage Foundation, Americans for Tax Reform and the Center for Democracy and Technology, sent the agency a letter calling them out on their opposition.

    ECPA, enacted in 1986, is the main statute protecting our online communications from unauthorized government access. Unfortunately, as our lives have moved online the law has remained stagnant, leaving dangerous loopholes in our privacy protections. A broad coalition including privacy and consumer advocates, civil rights organizations, tech companies, and members of Congress from both parties has been pushing for an update. Strong bipartisan legislation to update the law has over 200 sponsors and is making serious headway in Congress. Even the Department of Justice—the law enforcement agency with arguably the most to lose in such an update—testified that some ECPA loopholes need to be closed.

    But the SEC is pushing back – essentially arguing that they should get to keep one of the loopholes that have developed as the law has aged. When ECPA was passed in 1986, Congress developed an elaborate framework aimed at mirroring existing constitutional protections. Newer email, less than 180 days old, was accessible only with a warrant. Based on the technology of the time, older email was assumed to be “abandoned” and was made accessible with a mere subpoena. Similarly, another category of digital records, “remote computing services,” was created for information you outsourced to another company for data processing. Seen as similar to business records, it could also be collected with a subpoena under the law.

    Fast forward to the 21st Century. Now we keep a decade of email in our inboxes and "remote computing services” has morphed into Facebook keeping all our photos or Microsoft storing our Word documents in their cloud. Suddenly the SEC can access content in way it never could before.

  • April 10, 2014
    Guest Post
    by Christopher Wolf, Director, Privacy and Information Management Practice Group, Hogan Lovells LLP; Founder and Co-Chair, Future of Privacy Forum
     
    The Snowden revelations about NSA activities have brought government access to online data into the public eye over the past year. Allegations that surveillance programs may have impacted American citizens have led to public outrage. In response, the president has promised to reform the U.S. government surveillance apparatus to “provide greater transparency to our surveillance activities and fortify the safeguards that protect the privacy of U.S. persons.”  
     
    Long before the Snowden revelations, enhancing the privacy of U.S. persons was the focus of less-visible efforts to reform the Electronic Communications Privacy Act (ECPA), a law enacted well before the Internet era that allows law enforcement access to a panoply of electronic information held by third-party information service providers without first obtaining a warrant.
     
    In December 2013, more than 100,000 Americans signed an online petition calling on the Obama administration to support ECPA reform. Although a warm spring finally is emerging in Washington, D.C., the White House has remained silent as reform bills (e.g., S. 607 and H.R. 1847) remain frozen in Congress. 
     
  • February 12, 2014
     
    Writing for Bloomberg, distinguished Harvard Law School professor Cass R. Sunstein objects to the “originalist” approach to constitutional interpretation. Sunstein reveals originalism’s “alluring siren’s call” and why “our constitutional tradition has been right to resist it.”
     
    Today, members of the Privacy and Civil Liberties Oversight Board will testify before the Senate Judiciary Committee regarding their report on the National Security Agency’s bulk collection of phone records. Jennifer Granick of Just Security offers eight important questions Congress should be asking the PCLOB about the controversial surveillance tactics under section 702 of the FISA Amendments Act.
     
    Last year, the Internal Revenue Service proposed new rules regulating political speech for select nonprofit organizations. Reporting for the ACLU’s Blog of Rights, Gabe Rottman and Sandra Fulton explain why these rules “create the worst of all worlds.”
     
    At the NAACP, U.S. Secretary of Health and Human Services Kathleen Sebelius and NAACP Senior Director of Health Programs Shavon Arline-Bradley celebrate Black History Month with a discussion about the Affordable Care Act.
     
    NPR’s Carrie Johnson notes Attorney General Eric Holder, Jr.’s call for 11 states to repeal laws prohibiting current or formerly convicted felons from voting
  • February 5, 2014
     
    JPMorgan Chase has agreed to pay the U.S. government $614 million to settle its defective loan case. Announced Tuesday, the deal settles claims stemming from JPMorgan’s approval of unqualified home mortgage loans since 2002. NPR reports on the legal ramifications being felt by the world’s biggest banks.
     
    The U.S. Department of Transportation is designing new “Vehicle to Vehicle” communication technology that would help prevent traffic accidents. Reporting for the ACLU’s Blog of Rights, Jay Stanley discusses the privacy implications surrounding the new technology.
     
    Herbert Smulls, a convicted inmate in Missouri, was executed before his final stay was denied last week by the U.S. Supreme Court. Andrew Cohen at The Atlantic reports on what went wrong and reveals a “breach in ethics and in the law.”
     
    Daphne Eviatar at Just Security addresses the issues surrounding drone technology and what must be done to guarantee that its use remains within the law.
     
    Writing for The Root, Henry Louis Gates Jr. provides a brief history of Black History Month and its founder, Dr. Carter G. Woodson.
  • February 3, 2014
     
    * Editor’s Note: "LegalEyes," a new daily ACSblog feature highlighting important news in law and public policy, begins with this inaugural post. Visit each weekday at noon for fresh updates.
     
    Writing for the Brennan Center for Justice, Andrew Cohen explains how lawmakers in Alabama and Tennessee have introduced legislation to expedite capital cases in their states. With an already damaged prison system, Cohen explains how these new measures could mean the difference between life and death for today’s inmates.
     
    While section 215 of the Patriot Act is widely known for its controversial surveillance tactics, section 702 of the FISA Amendments Act (FAA) brings to the forefront a whole host of issues regarding the legality of mass surveillance. Section 702 allows for the spying of non-U.S. citizens in an effort to prevent terrorism while collecting security intelligence without a warrant. In the first part of her ongoing discussion at Just Security on reforming Section 702, Jennifer Granick explains why and how the section should be reformed.
     
    It was one issue that had Democrats and Republicans on their feet during the State of the Union address last week: immigration reform. Although House Republicans have answered calls to tackle immigration reform with a newly written plan, their recent efforts have culminated in a controversially opaque blueprint. Alex Altman at TIME Magazine breaks down reactions to the GOP’s ambiguous plan to reconstruct immigration law.
     
    Writing for Balkinization, Jason Mazzone comments on the second murder conviction of Amanda Knox. The infamous case involving Knox and her former boyfriend in the 2007 murder of a British roommate was reestablished after the Italian criminal justice system reinstated its guilty verdict last week. In a revealing comparison between legal systems, Mazzone argues that Knox may be in a far better position today than if the case were originally held in the United States.