AFF-Austin and Google partnered to present a timely discussion dubbed No Freedom Without Privacy: The ECPA Needs an Upgrade on February 4, 2014. The topic for the evening was the Electronic Communications Privacy Act of 1986. Interest in this event was quite high, filling all eighty reserved seats at Fonda San Miguel, which proved itself a wonderful location for technology and privacy enthusiasts to congregate and discuss the important issues of the day. The AFF-Austin event was opened by remarks from the Lieutenant Governor’s Office regarding the importance of the issue. Attendees included individuals in technology, attorneys, and public policy professionals, among others. The panel was moderated by AFF-Austin chair, Arif Panju.
According to the panel, the primary problem with the Electronic Communications Privacy Act (“ECPA”) is that it is outdated. As one of the panelists, Matthew Henry with Electronic Frontier Foundation-Austin notes, “in the context of the Internet, it’s nearly pre-historic,” and though “it may have been an effective and important statute for 1986, today it no longer represents the privacy expectations of the American public.” The panel also included Arthur Gollwitzer III, a partner at the law firm of Michael Best & Friedrich and a former Assistant U.S. Attorney, and Perry Robinson, VP and Associate General Counsel at Rackspace.
Additionally, the panel explained that two of the other most obvious problems with ECPA deal with its privacy protections for email. First, ECPA protects the content of email from government searches with a warrant requirement only when it is less than 180 days old. Second, the warrant requirement only applies when the email is unopened (except in the western states of the Ninth Circuit). These distinctions are anachronisms from the mid-1980s and make no sense considering the way people use email today. ECPA also allows the files we save in the cloud to be seized without a warrant, even though those same files would be protected by the Fourth Amendment if they were saved in a home file cabinet.
Not only is this unfair, many argue it is unconstitutional and that ECPA does not protect the privacy that Americans expect and it is clearly in need of being modernized.
AFF-Austin would like to thank Google for sponsoring the panel and the reception that followed.