In 1986 The American Banker defined E-mail as “a trademark of CompuServe,”Computerworld noted that sending a single message required a 10-minute phone call, andInfoWorld described “a pilot scheme that will allow users of one system to send messages to mailbox holders on another.” That was the year Congress enacted the Electronic Communications Privacy Act (ECPA), so it is hardly surprising that the once forward-looking law seems antiquated today.
In fact, ECPA is so out of date that it has left us vulnerable to government snooping in ways most Americans do not appreciate. With the Senate Judiciary Committee consideringpossible fixes this week, now is a good time to reflect on how technological advances and misguided legal reasoning have eroded the Fourth Amendment guarantee against unreasonable searches of our “papers and effects,” which nowadays take forms the Framers could not have anticipated.
Computerworld described ECPA as a law regulating “the interception of data communications, such as electronic mail and bulk data transfers, during transmission and while stored in a computer.” According to a Senate report, the legislation was supposed to strike ”a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies.”
Since ordinary paper mail and telephone calls have long enjoyed Fourth Amendment protection, you might think such a law would be unnecessary. But a series of Supreme Court decisions dealing with information held by third parties, including tax, bank, and phone records, had left theconstitutional status of email highly uncertain.
CONTINUED at Reason. Written by Jacob Sullum.