A NYT article, More Demands on Cell Carriers in Surveillance, resounds with the theme that technology has disrupted the Fourth Amendment jurisprudence in communications. It is also a testament of what the USA-Patriot Act has wrought not because that Act created the gap but because it exacerbated it. More than a decade later, that which has been lost in the bargain becomes more obvious.
The Electronic Communications Privacy Act (ECPA) created the gap. Its failure to distinguish between telephony and data networking technologies in mapping Fourth Amendment procedures in electronic communications was problematic from the start. The premise of the Act rests on a distinction between "conversational detail," for example billing records, and content, such as the full exchange in a telephone communication. The former has always been below the Fourth Amendment threshold, and the latter within its pocket. The procedures therefore were also different. The former fell under a subpoena and the latter a warrant.
But the difference in the technology between telephony and data networking broke that paradigm. "Conversational detail" in data networking has the potential to disclose content, such as subject lines in email headers or an Internet Protocol address which can be resolved to a web site (depending on how a router that captures this information is configured). That problem lay largely dormant in 1986 when Congress promulgated ECPA because packet-switching was yet in its infancy. By the time the Internet became public fewer than ten years later, not only were thoughtful observers raising concerns but courts had chewed over the convoluted language of ECPA and spit it out with some of the most damning dicta (opinion) in the federal circuits. Judges probably had little knowledge of the technology/legal dissonance in play because they could not get beyond the wording of the law.
The Patriot Act opened the flood gates of this fracture by lowering even still further the "showing," or requirements, by which law enforcement could obtain the lesser information, "conversational detail." Reduced to a letter filed with a clerk, and the last decade suggests in thousands of cases not even that much, a request for communications information that disclose content without evidence of criminal activity has made the original intent of U.S. v. Katz, the 1967 case that established a Fourth Amendment right in electronic communications, essentially ridiculous for all practical intents and purposes. Add more complex functionalities of electronic communications, location tracking in particular, to this mix and it is no wonder that the Times followed this article up with an editorial calling for a revision of ECPA entitled "The End of Privacy?" The question mark suggests a challenge; might awareness of the gap engender a renewed beginning of privacy in electronic communications?
As dysfunctional as Congress has become these days, the gap has become even more so, and a genuine threat to civil liberties. Some years ago Google among other stakeholders called attention to this problem with an organization called Digital Due Process. Now that Senator Leahy, one of the crafters of ECPA, has called for a serious revision of this legislation with the hopes of narrowing this gap, it is time for citizenship participation. As the Internet means more and more to our everyday lives, as we would hope that U.S. law will be a beacon to international communications and civil liberties in cyberspace, we -- American society -- must show leadership in reconciling the technology with cherished traditions embedded in our Constitution.