Electronic Privacy Control Act of 1986, Essay Example

The purpose of this paper is to explain and examine the Electronic Privacy Control Act of 1986.  The rationale of the act was in effect long before the explosion of the internet and various social media outlets.  This paper defines the ECPA 1986 along with its titles and exemptions.  Additionally, the weaknesses in the EPCA 1986 are clearly set out in order to prove that the Act needs prompt revision to reflect the privacy concerns of today’s internet age.

Definition

The Electronic Communications Privacy Act of 1986 otherwise known as ECPA was a result of the internet revolution. The act was originally called the Federal Wiretap Act of 1968. In the 1960s, Congress had authorized itself to be able to tap hard telephone lines. The law was updated into what is now known as the Electronic Communications Privacy Act of 1986 or ECPA 1986. This was so that law enforcement could tap new technologies with ease (American Civil Liberties Union, 2015).

Provisions

The general provisions of the Act protect oral, wire and electronic communications while they are in transit. Additionally, the Act protects the data when it is stored. The act was written so that the drafters of the Act could determine what type of data was considered private and what data was considered not private. The drafters decided that Internet communication that was made public should have stricter restrictions on it than personal information such as emails that is stored on private servers (American Civil Liberties Union, 2015).

Controversies

The controversial aspect of this law is that the people who made the law are the ones who determine the importance of the data. There are some types of information that require law enforcement to obtain a search warrant while other information requires a court order while others require a subpoena. Other information does not require any of the above.

Titles

There are three titles to the ECPA 1986. Title One covers wiretaps and has been often referred to as the Wiretap Act. This title of the EPCA 1986 prohibits evidence to be presented against the defendant if it is obtained illegally. Title Two of the EPCA otherwise known as the Stuart Communications Act protects service provider’s data that is held by subscribers. Such information that this consists of is IP addresses, billing records, and the subscriber’s name and address. Titled Three of the EPCA covers the fact that the government requires that law enforcement obtain a court order in order to tap or place a pen register on a defendant’s data. This order can be authorized if it looks like the information may be helpful to the law enforcement agencies (It.ojp.gov, 2015).

There is an exception to Title One of the ECPA 1986. This exception is for service providers and operators in the “normal course of his employment while engaged in any activity which is necessary incident to the rendition of his service” (It.ojp.gov, 2015).   The exception also sets forth procedures for judicial authorization for the interception of communications and thereby authorizes the disclosure and use of wiretapping. In this instance a judge may authorize the interception of data and communications if there is probable cause that the individual is perpetrating or planning on perpetrating a criminal act, and the judge can allow this for up to 30 days if there is probable cause (It.ojp.gov, 2015).

Amendments

The amendments to the ECPA of 1986 are the communications assistance to Law Enforcement Act, and this amendment was set forth in 1994. Of course, in 2001 the Congress passed the USA PATRIOT Act and this amended the ECPA of 1986. Additionally the USA PATRIOT Act reauthorized the amendment of 1994 and 2006 and further amendments were made to the act in 2008 (It.ojp.gov, 2015).

The Electronic Privacy Act has not in itself been updated since 1986. There was no such thing as social networking common, nobody carried a cell phone, and there was no such thing as Facebook. This law protects consumers email, search history, cell phone location records and computer documents and it was passed in 1986 (American Civil Liberties Union, 2015). It is well known with the advent of technology and its advancement since 1986 that the law is completely outdate. And because this law is out-dated, the government is allowed to intercept information such as what search engine one goes on, their telephone providers, what social network and websites that they go on every day.

This is a violation of the intent of the founding fathers because they believe that in a democracy citizens should be assured of privacy of their own personal property which would include their papers and their effects. This is not true in the case of the ECPA 1986 because this law has not been updated to reflect the advancements in Internet technology. Consequently privacy laws that are created to extend to the online environment should not be older than the web or the Internet environment itself (American Civil Liberties Union, 2015).

Rationale

The reason behind this law was to allow the government to use wiretapping methods to intercept telephone or “hardline” communications back in the 1980s.  This was before the USA Patriot Act of 2001 which was passed because of the terrorist attacks on September 11, 2001. The original rationale for the creation of the Electronic Communications Privacy Act of 1986 was to extend Fourth Amendment rights beyond the telephone which was to include the Internet. But this happened, as was stated earlier, before the advances in modern technology to the point where people are now using cloud technology that is stored on a virtual server and this presents problems to the ECPA Act of 1986. It has been almost thirty years since the passage of the ECPA Act of 1986 yet it is not keeping up with technology.  This has resulted in considered privacy concerns for internet users, internet providers, and the general public (American Civil Liberties Union, 2015).

Conclusion

In conclusion, the ECPA Act of 1986 was enacted to tap telephone conversations.  Since then, the technology has exploded to the point that the Act allows too much intrusion into a person’s privacy.  It is clear from the examination of this topic that internet users should be given more privacy and that the government should not be able to pry into their personal interactions on the internet and this includes their social media interactions.  The ECPA of 1986 still allows the government to monitor these conversations and interactions.  This Act needs to be amended in favor of personal privacy rather than remaining in the Orwellian past.

References

American Civil Liberties Union,. (2015). Modernizing the Electronic Communications Privacy Act (ECPA). Retrieved 12 November 2015, from https://www.aclu.org/feature/modernizing-electronic-communications-privacy-act-ecpa

It.ojp.gov,. (2015). Electronic Communications Privacy Act of 1986. Retrieved 12 November 2015, from https://it.ojp.gov/privacyliberty/authorities/statutes/1285