[This section below follows an introduction to the overarching subject of privacy as a matter of law, social norms and culture in the United States. It is the first of the three posts on the USA-Patriot Act extracted from a longer article. Note that this section raises the question of whether the Electronic Communications Privacy Act of 1986 should be amended for its failure to map Internet technology to Fourth Amendment jurisprudence.]
In the Internet era, the U.S.A.-Patriot Act set the stage for this issue. Almost immediately upon its promulgation, just weeks after the events of September 11, 2001, it became a household term, even if most people failed to understand what the law did, or did not do. It did not, for example, create secret courts. They already existed under the Foreign Intelligence Surveillance Act of 1978. The “Patriot Act” only gave them a wider berth to operate and collect information through electronic surveillance.
Other misunderstandings quickly emerged. The most common was that the Patriot Act allowed law enforcement to read users’ emails. The Patriot Act did not allow the government legal access to email more freely than existed under the Electronic Communications Privacy Act of 1986 (ECPA). It did, however, lower the legal threshold for how law enforcement could collect “conversation detail,” or the information in telephone communications that records time stamped source and destination phone numbers; for the Internet, that information includes time stamped source and destination Internet Protocol, or “I.P.” addresses. All that was necessary with the amendments that the Patriot Act made on ECPA was a letter filed with a governmental clerk. While for all intents and purposes, that procedural change alone was hardly radical, given the actual practice of obtaining conversational detail of telephone records.
Nevertheless, the apparent lack of due process raised eyebrows. What was of genuine concern was the fundamental flaw in the older law. When applied to data networking, it broke the paradigmatic relationship mapping the technology to Fourth Amendment jurisprudence. Designed for telephony and not data networking, ECPA originally established a divide between “conversational detail” and content. “Conversational detail” was always easily available to law enforcement. Content required a warrant, which implicated the Fourth Amendment’s “probably cause of criminal activity” threshold.