Technology has grown more and more quickly of late, and it has been changing the world as it does, reshaping our means of communication and information storage. Unfortunately, thanks to the nature of the American political system, it is very difficult to keep America’s laws up to date with the changing technological scene. No single technological development greater exemplifies the way in which America’s laws becomes outdated compared to technology than the Internet. The Internet has led to major changes in access to information, and in information storage, which thereby change the methods in which the law must interact with information. Now, Google and Microsoft are pushing for a modernization of America’s privacy laws, so as to update those laws to fit the current level and nature of technology.
Calling themselves the Digital Due Process coalition, this initiative is pushing for laws such as a requirement that police and other law enforcement agencies get a warrant granted to them by a judge when they wish to have access to a given employee’s emails, documents, and location data, as reported by Ryan Singel of Wired.com. This push obviously comes from the fact that these sources of information can often hold very sensitive items, and if law enforcement agencies do not need to go to a judge in order to attain access to them, then invasions of privacy could in fact become much more frequent. Treating access to emails and the like at a company to be similar to how you would treat sensitive documents in terms of the law seems to be the best way to deal with these electronic forms of information.
Considering that the last law regarding electronic privacy was put into effect in 1986, there is a fair amount of updating that likely needs to occur before a privacy law for the modern world will officially exist. As an example, Singel points out how significantly the nature of email has changed since the time the law was initially implemented. When the Electronic Communications Protection Act was officially established as law in 1986, emails were generally downloaded directly onto a user’s computer from the central server. Messages that were left on that server for over six months, without being downloaded, could be taken by the police with only a subpoena, and not a judge’s permission, according to that law. If those emails were instead downloaded onto a computer, however, then the police would need a warrant to get to them. Considering, however, that tremendous amounts of information are currently being stored on the servers of major email companies like Yahoo, Google, and Microsoft, this law clearly needs to be updated. Right now, almost no email is downloaded onto the hard drive of the user’s computer; it is instead accessed directly at the mail server, which means that this law allows for an intrusively large amount of access to private emails and other data.
Google and Microsoft, then, as the major elements of this coalition, are seeking a change to the law such that any attempt to get at online information would require a judge’s approval. There are four principles governing Microsoft and Google’s push for legal change. The first would make it a law that the government needs a warrant of probably cause to get at non-publicly available email, Facebook, document, and photo information. The second is that similarly, under law should have to get a warrant for probably cause to get to location data for mobile devices. The third is that a judge’s approval is required to get contact information regarding what numbers were dialed on a phone or what email addresses were sent to from an email account. The fourth is that a self-issued subpoena can only be used to obtain data from one particular individual, as opposed to getting data from a group of individuals in a particular place at a particular time.
These principles are a good base from which to start thinking about modifying the existing laws. With the move of more and more information being stored online, greater privacy laws do need to be enacted to protect citizens from the dangers of such laws. Ironically, the fact that Google and Microsoft are pushing for many of these changes simply points to both companies’ fault in the entire affair, as they pushed more and more for individuals to begin putting information online without those individuals being protected by appropriate privacy laws. Now, they are essentially trying to fix the problem with their push for greater electronic privacy law, but they still refuse to have transparency about such issues as how often they are subpoenaed to provide users’ information to the government.
The entire affair is centered around the basic problem of laws needing to keep up with information technology, coupled with some of the more recent trends in law that have involved allowing for warrantless wiretapping and the like. At the moment, there is little doubt that law enforcement agencies are greatly appreciative of the lack of law in the domain of electronic privacy, if only because it makes it a very easy prospect to gain access to important information. Law enforcement agencies do not have to worry about the hurdles that they would have to overcome if greater electronic privacy laws were enacted. It is even entirely possible that the lack of such law has aided in numerous instances to solve a crime or catch a criminal. But the fact remains that there is an unacceptably low level of protection for the information of users kept online. In order to offer to citizens the appropriate amount of informational protection, the law of America does need to be updated, and the principles proposed by Google and Microsoft create a firm framework around which to do so. The problem, of course, is that as technology exponentially increases in complexity and capability, so will the gap between law and technology. There is no telling, then, how long any such update to electronic privacy laws will actually last in relevance. It’s easy to believe that in only a few short years, another update to the law might be necessary.