No Cops in the Cloud Without a Warrant

Location, Location, Location

The proliferation of increasingly high-powered mobile devices has already given rise to the Internet's first generation of location-based services and applications. Nowadays, it is becoming easy to find a nearby restaurant or bookstore using your mobile device. You can even find your friends and loved ones: Some services allow a user to plot the location of friends on a map, making it easy to meet up.

But, ECPA provides no legal standard for law enforcement access to location information, resulting in a confusing mish-mash of court opinions. A majority of lower court decisions have required a probable-cause warrant for real-time access to location information, but other courts have required far less.

Some courts make distinctions based on the precision of the location data. GPS can provide more precise location than can other technologies, such as proximity to cell phone towers.

Some courts have made distinctions based on whether location information is real time, or historical. This legal uncertainty not only complicates the job of law enforcement, but the lack of strong privacy standards can hold back consumer use of location-based services.

In a world where most Americans carry with them a cell phone that broadcasts their location about once every several seconds, it is time to afford this location data a very high level of protection.

The coalition is proposing that ECPA be updated to require the government to obtain a warrant from a judge before tracking the location of a cell phone or any other mobile communications device.

This warrant standard would apply regardless of the precision of the location information and whether it is prospective or retrospective. The coalition's principle would allow for exception in emergency cases, such as locating a missing person.

What Comes Next?

The current uncertain state of the law serves no one well. Consumers do not know how well their data is protected, law enforcement is uncertain about what kind of process to use to secure lawful access to different kinds of information, and the companies that hold the information do not know what their obligations are. Any solution must balance the interests of law enforcement, privacy, and industry.

The launch of Digital Due Process marks a new phase in a long-term effort to bring protection to our 21st century communications. The process of updating the laws is likely to last several years.

ECPA is complicated and although it is crucial to the privacy of Americans' data, the statute is not well understood even by many policymakers and stakeholders. Encouragingly, both the House and Senate Judiciary Committees have already signaled that they will hold hearings on ECPA reform this year.

In 1986, Congress enacted the Electronic Communications Privacy Act to foster new communications technologies by giving users confidence that their privacy would be respected. By helping to further the growth of the Internet, ECPA proved monumentally important to the U.S. economy.

Now, technology has again jumped ahead. It's time to update ECPA so we can continue to innovate and grow, with our privacy intact.

Leslie Harris is president and CEO of the Center for Democracy & Technology.

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