By Molly Ryan
Though the Electronic Communications Privacy Act was passed in 1986, it has not been updated to reflect the evolving communication norms. The recent scandal involving General Petraeus has finally spurred Congress to update the act. The proposed bill will require police to obtain a warrant before reading emails and any other form of electronic communication. Currently, only an administrative subpoena is required unless the email was already open or sent over 180 days ago. There was draft provision containing an exception in order to expedite the process of obtaining business records. This would have limited the warrant requirement only to service providers to the public. There was understandable controversy over this as information such as student emails from a university would be available with only a subpoena. It has not been included in the most recent draft.
The idea that to read emails police should have a warrant seems to be a common sense one, given today’s current conception of privacy and the increased prominence of email as a major form of communication. This bill and the efforts to update it highlight a broader concern – namely, how do we define privacy such that our legal system’s definition can keep up with that of society? Julie E. Cohen, a Georgetown University Law professor suggests that we move away from a conception of privacy as merely a tool to further other, independent aims such as liberty. In the current conception, privacy is one of many means to protect other values and as such is interchangeable with other defenses. She sees privacy as an end in itself, a buffer that keeps us free to develop without surveillance. Perhaps if the law defined privacy this way, it would be much easier for the law to progress alongside technology.