For this litany of gross injustices, civil-liberties experts blame the archaic Electronic Communications Privacy Act (ECPA). Signed by Reagan in 1986, near the end of the USSR but way before SEO, the law aimed to protect emerging electronic rights, but failed to forecast developments like GPS-equipped smartphones or even email as it now exists. Exploiting this glaring lack of directive, law enforcers from the feds down to small towns have assumed the liberty to access digital data without obtaining warrants. Never mind Fourth Amendment protections against unreasonable search and seizure, or that cops need a judge to sign off on the inspection of a single leaf of snail mail.
Many courts have weighed in on these matters, though not always in agreement with each other. In Rhode Island, a judge recently tossed cellphone evidence that was obtained without a warrant. Meanwhile, the highest court in California ruled that such info is fair game if the perp has the phone in his possession at the time of the arrest. Cell records aside, social-media companies are also being tapped for info. During the encampment stage of Occupy Wall Street, district attorneys in Boston and New York subpoenaed Twitter for the accounts of movement participants. In New York, both Twitter and the target challenged the subpoena, but were rejected, leaving the unfettered fire hose of private data open to authorities.
To close this valve in Massachusetts, the ACLU helped craft a state Electronic Privacy Act. According to legislative counsel Wolfe, the purpose of the bill is to address "a major gap in privacy protections for the digital age." "The laws that protect our privacy haven't caught up with our technology," says Wolfe. "The Electronic Privacy Act is a very simple response to the problem. It would apply the traditional, familiar, everybody-knows-how-it-works-because-it's-been-beta-tested-for-200-years warrant standard and procedure to our personal data held by phone and Internet service providers."
A MESSY PICTURE
If the Electronic Privacy Act passes in Massachusetts, federal investigators will still have warrantless access to your digital trail. So will state and county prosecutors, who enjoy the vague leeway granted by a 2008 administrative subpoena statute. Still, with the restrictions it places on search procedures, it would be a somewhat unprecedented win nationally; the California legislature produced a comparable bill to regulate cellphone tracking, but Governor Jerry Brown, a former state attorney general, gutted the initiative.
Speaking on the appetite of state pols to tackle privacy reform, Electronic Frontier Foundation Senior Staff Attorney Lee Tien says, "It's a messy, messy picture." He continues: "It's hard and complicated to write these reforms and get them right, so there's a tendency to leave it to the feds. . . . State legislators don't want to waste time if they think Congress will preempt it, and we're going to see location tracking come right back in the new Congress."
Still, the ACLU and its allies on Beacon Hill soldier on, while vocal local privacy advocate Kade Crockford, who works at the ACLU's Boston office, pushes these issues daily on the popular Privacy SOS blog. Massachusetts is already leading the fight for these protections nationally; Congressman Ed Markey, who recently announced his run for Senate, has worked to limit cell tracking in recent years. In the meantime, Beacon Hill seems to be as ripe of an arena as any for the next battle.