Companies Fight for User Privacy

Companies Fight for User Privacy

Zach Cohen

Articles:

http://www.wired.com/threatlevel/2013/01/google-says-get-a-warrant/?cid=5468824

http://www.theverge.com/2013/1/26/3917684/google-microsoft-yahoo-facebook-require-warrants-private-content

            These articles seem to be two parts of the same issue: the gap between existing privacy law and the protection required in today’s society. In both articles, the author discusses how companies such as Facebook, Yahoo, and Google, have begun to require warrants from the government if it wishes to access information regarding their users. Google in particular has stated that it requires a showing of probable cause before it releases the content of its user’s email and other information, to the government.

            The probable cause requirement articulated by Google is particularly interesting due to the fact that, even though it seems to comport with the 4^th Amendment’s prohibition on unreasonable searches and seizures (Warshak), it is in opposition to ECPA which merely requires “reasonable grounds to believe,” that an email or other documents are going to be useful to an investigation. Google’s efforts to protect its users data reflect the requirements of today’s society, while ECPA reflects the understanding of technology that existed in 1986. Google’s protection of its user’s data is representative of an understanding that technology like email, cloud storage, instant messenger, and the like, have become as ubiquitous today as mail and phone calls were in 1986.

            In many ways, ECPA is representative of a mindset, and reflective of technological development that is out of date and incompatible with the present day notions of privacy. In today’s day and age, the fact that nearly every facet of business, personal, and everyday life, can be conducted via technologies like email, instant messenger, etc, seems to demonstrate the anachronistic nature of ECPA and the government’s mindset with respect to these types of communications. When the protections afforded to things like a normal letter is juxtaposed with the lowered level of protection given to now ubiquitous communications like email or skype, the problems with the government’s policy becomes even more stark.

            The divide between ECPA and Google’s requirements seems unacceptable in light of current privacy law. As the court established in Katz, the government has to obtain a warrant if it wants to search an area in which an individual has a reasonable expectation of privacy. It therefore seems odd that the government’s position as it is expressed in ECPA, would treat something as fundamental as email, instant messages, and other fundamental forms of online communication, as somehow less deserving of privacy protections than those of telephone calls or similar technologies. ECPA itself maintains a heightened form of warrant requirements for wiretaps on phone calls, and yet lessens that requirement when it comes to forms of communication that have become equally important in today’s society. As technologies like cloud storage and email become more popular, the idea that the government needs anything less than probable cause to search such things has become far less tenable. After all, it would be absurd to suggest that the legacy of Katz and other privacy jurisprudence is that the government can dictate what is and is not an acceptably reasonable expectation of privacy.

Ultimately, these articles are representative of the way in which privacy law has failed to adapt to the current times. As cloud storage becomes more and more widely used, and email remains a staple in most homes, the governments position that it needs less cause to access that sort of information than it does to tap your phone lines seems irrational. The government’s refusal to update its requirements for accessing electronic information flies in the face of at least one great Justice has described as the citizen’s “right to be left alone.”