Not a lot’s been done in response to last week’s revelation that police made more than 1.3 million requests — a dramatic increase of years past — for cell phone user information last year. Sure, a lot of newspapers and blogs have written about the announcement by Rep. Ed Markey, a Democrat from Massachusetts, who collected the data. The issue even stirred the New York Times editorial board to write an enlivened op-ed on the issue, unapologetically titled “The End of Privacy?,” begging for even more attention to be paid to the issue and legal action to be taken. Historically, however, Congress has been slow to tackle the topic.It’s not like there aren’t laws to deal with your cell phone privacy. However, what’s out there is obscenely out of date. The nuts and bolts of legal surveillance in the United States can be traced back to the Electronic Communications Privacy Act (ECPA). This 1986 went into effect when email was used mainly by hardcore geeks, cell phones basically existed only as bulky prototypes and the World Wide Web hadn’t even been invented. As such, the law makes it relatively easy for the government to gain access to data like email history and cell phone user information like location. Really, all it has to do is show that the info will be useful in an on-going investigation and the cell phone company or email provider has to give it up. They don’t even need a warrant.Congress knows that the law is outdated. Last year, Sen. Patrick Leahy from Vermont introduced the ECPA Amendments Act in an attempt to bring the law up to date with the 21st-century reality. The bill called for probable cause warrants to be required for emails and other electronic communications as well as for the police to gain access to real-time location data, though not for past location. (A complimentary location privacy bill was released in the House around the same time that Leahy pulled back the curtain on his bill.)Since Leahy authored the original 1986 bill, which had been condemned by the American Civil Liberties Union (ACLU), his recommendations would seem like a no brainer. But the bill stalled in committee, where it hasn’t been touched for a year. “Cellphones, e-mail, and online social networking have come to rule daily life, but Congress has done nothing to update federal privacy laws to better protect digital communication,” the Times complained in its Sunday op-ed. “That inattention carries a heavy price.” As we’ve seen, law enforcement is quick to take advantage of the loose federal regulations around tracking cell phone and email users, and without sounding too dramatic about it, they’ve successfully brought together service providers to create a surveillance state. Who knows what it will take to reverse course.
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