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Leonardo Angiulo: A New Law That Will Let You Have More E-Privacy

Monday, April 29, 2013

 

My sister and I are pretty close in age and in true big brother fashion I used to play tricks on her. Take “opposite day” as an example. On “opposite day” yes meant no and no meant yes. So if I had a glass of water on a hot day I would ask her if she wanted it and if she said yes, I would drink it all and then say “it's opposite day, so I thought you meant you didn't want it!” And I would usually laugh after.

I was reminded of opposite day when I started researching the Electronic Surveillance Privacy Act. This is the federal law that governs the use of surveillance within the United States. The original version was passed in 1986 and, as you can imagine, some things in the world of technology have changed since then. While the word “privacy” is included in the name, this Act is really about what communications can be accessed by Government agencies. See what I mean about opposites?

A recent bill introduced in Congress would make significant amendments to the current version of the act. The amendment is known as the Leahy-Lee Electronic Privacy Amendments Act and is a bipartisan effort between Democratic Senator Patrick Leahy from Vermont and Republican Senator Mike Lee of Utah. The proposals include requiring search warrants as a prerequisite to the seizure of e-mails, and other electronic communications, stored by internet service providers. This, arguably, makes perfect sense given the fact that the terms of the Fourth Amendment to the United States Constitution prevent the seizure of personal papers without a warrant and emails are the modern form of correspondence.

The reason why this matters is because the contents of electronic communications and other digital information stored longer than 180 days have been in the past turned over by service providers after administrative subpoena from various federal agencies including the law enforcement branch of the IRS. So, to break it down, members of the executive branch were sending requests for records of communications and transactions to companies and they were getting stuff back. And they were doing this without a search warrant. There are two big differences between administrative subpoena and a warrant: a warrant requires a) the involvement of a member of the judiciary; and b) a showing of probable cause in an affidavit supporting the warrant application.

At the risk of sounding paranoid, lets discuss what types of information a regular person may be providing to various companies that reflects on the individual thought process. Do you have a Netflix subscription? Did you watch that two part film about Che Guevara starring Benicio Del Toro? The government might want to know about people with communist proclivities some day. Did you email your buddy getting really excited when they decriminalized marijuana in Colorado? Gmail may still have that on file and the DEA might be interested to know your thoughts on pot after you buy a ticket for a concert at Red Rocks Ampitheatre and have a return flight back to Massachusetts afterwards. What if they want to stop you to see if you are carrying ganja back on the flight? How about expressions of frustration about American foreign policy decisions to your family members over text message? Would that justify placing you on the no fly list?

I remember reading George Orwell's book 1984 in High School and wondering what it would have been like for a government to force everyone to install a surveillance device in their home. Would people have rebelled, argued or even taken to the streets in protest? I never imagined that people would have installed one or more in their homes, never turn them off, pay a monthly fee for the privilege or even carry one in their pocket everywhere they went. Of course, at that time we still had dial up modems, smartphones didn't exist, and everyone still tuned into TGIF on their tube TVs.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] or through the firm's website at www.gskandglaw.com.

 

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