The rapid development of Internet communication technologies requires a substantial legal base that will address all minor aspects of the line between personal data privacy and borders for governmental inspection. It appears that in addition to providing the governmental agencies all users’ information upon request, ECPA (Electronic Communications Privacy Act) allows conducting inspections in an undercover way, which violates the citizens’ rights from the First Amendment. Furthermore, several details affect the progress towards more relevant legal regulations basis for online activities.
Firstly, creating a new legal base for electronic communication requires a complex approach, as due to the fast development of communication technologies, the legal base can lose its relevance in a short period. Secondly, the data communicated and stored in the online space is exposed to several threats such as hacking and theft. Moreover, Internet communications present a potential threat to society, as dangerous groups use internet communications to sell prohibited substances and weapons.
The potential threat to society is generally lower under governmental supervision; however, the limitation of citizens’ privacy leads to lower levels of freedom in the country and poor protection of citizens’ safety. While the failure to gain private information about citizens can decrease the safety levels, the prohibition of gag orders will allow the citizens to be aware of the state’s interference in their personal information. In addition, people who deliberately pose a threat to society generally can use different kinds of untraceable communication. Thus, it is essential to include the warrants for state inspections in the new legal basis to deprive the possibility of infringement of the privacy of innocent citizens. Therefore, the state’s concerns about terrorism and crime do not justify the violation of citizens’ privacy. It is time to change the ECPA or conduct a new legal base for online communication to reflect the fast development of communication technologies and provide more freedom to citizens.
Another issue that contributes to complications in the process of revising the current ECPA. In 2013 and 2015, Congress proposed legislation of ECPA revisions, but they never made it through the legislative process. Even efforts to make a companion bill to the ECPA, the Email Privacy Act, supported by 272 co-sponsors, ended in failure (Pegoraro). President Obama’s administration explained that revisions to ECPA will interfere with the state’s law enforcement activities (Pegoraro). According to Calabrese, any minor reforms are hard to pass, and potential conflict of interests with the FBI and law enforcement system (qtd. in Pegoraro). Therefore, the action to revise ECPA was not taken due to long legislative passing processes and potential interference with the law enforcement system’s activities.
In conclusion, the case of Microsoft demonstrates why all media organizations should support Microsoft in suits against the United States over the provisions of the ECPA. The companies should protect consumer rights more actively as due to legislative process complications, there is no hope for ECPA revisions in the nearest time. The company’s primary goal is to protect the customers’ interests and rights provided by the First Amendment, as customers’ support ensures the media companies’ income. With the growth of cloud technologies and the widespread use of servers in other countries for data storage, the US government is already experiencing trouble acquiring data from big companies. If the current legal base is not reviewed in the nearest future, the companies will start using more servers in other countries to guarantee privacy for their customers. Therefore, either way, the government will inevitably face the consequences of the ECPA revisions and potentially lose access to critical information that will decrease the citizens’ safety.