Jordan Jones - ITS3210 - Case Study 4 - 20231119
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Information Systems
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Dec 6, 2023
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Case Study 4
Jordan K. Jones
ITS 3210 Legal and Ethical Issues in Information Technology
Mr. Milton
November 19, 2023
Bill of Rights Protection
Modernizing the Electronic Communications Privacy Act (ECPA) is crucial for aligning it more closely with the Bill of Rights for several reasons. A few of these reasons are the protection of personal electronic information, the safeguarding of location information, oversight and reporting requirements and suppression remedy and reasonable exceptions. Modernization is needed to robustly protect all personal electronic information. The disclosure of such information to the government without a warrant and without notice violates privacy rights and implies the right to free speech and association. Current privacy law loopholes need to be closed to protect electronic information of any age and type, including content stored by online service providers. With the widespread use of cell phones, location information has become a critical area of personal data that requires protection. The law should require government officials to obtain a warrant based on probable cause before accessing such information, as it can reveal significant details about a person’s activities and associations. The ECPA’s current low standards allow for extensive, largely unsupervised government access to
personal information (U.S. Department of Justice, 2022). Amending the ECPA to extend existing reporting
requirements for surveillance requests would ensure adequate oversight by Congress and transparency to the public. There’s a need for a rule change to ensure that illegally obtained electronic information cannot be used in court, like the rule for non-electronic information. Also, the ECPA needs amendments to address overbroad exceptions that currently allow access to communication content without proper emergency justification, consent, or notice.
Modernizing the ECPA in these ways would help ensure that electronic records receive the protections aligned with the principles of privacy and rights outlined in the Bill of Rights. Failed Attempts at ECPA Revision
The efforts to revise the Electronic Communications Privacy Act (ECPA) in both 2013 and 2015 stalled
in Congress despite bipartisan support and backing from civil liberties groups and technology companies like Google, Facebook, and Microsoft. In 2015, the House of Representatives overwhelmingly voted to amend the ECPA to require a warrant for accessing all stored content. However, the Senate version of the
bill did not advance beyond the Judiciary Committee. Opposition from key figures like then-Senator Jeff Sessions and some of his Republican colleagues played a significant role in hindering the bill's progress in
the Senate (Orcutt, 2017). Orcutt (2017), believed that even though it had been shot down numerous times before that recent Federal Appeals Court ruling could help influence the passing of the measure. However, despite their efforts and a landslide win in Congress, the Senate shot down the revisions yet again. Organizational Support for Microsoft V. United States
Media organizations would likely support Microsoft in its lawsuits against the United States over the provisions of the Electronic Communications Privacy Act (ECPA) for several reasons such as: restoring
privacy protections, challenging secret searches, lack of strong notice requirements in the ECPA, provider
notification limitations, and finally Fourth Amendment concerns (Abdo, 2016).
Microsoft's lawsuit aimed to challenge the excessive secrecy in government demands for electronic communications, potentially restoring critical privacy protections. Media organizations, which value confidentiality and secure communication, would support efforts to reinforce privacy in the digital realm
.
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Secret government searches without notice prevent individuals from challenging the legality of surveillance. This lack of transparency can be concerning for media organizations that rely on confidential sources and secure communications for their reporting
(Abdo, 2016).
The ECPA, as it stands, does not include a strong notice requirement for government access to online communications. This lack of notice undermines the ability of individuals and organizations to be aware of and contest potential privacy invasions. Microsoft's lawsuit highlighted the issue of gag orders preventing companies from notifying their
customers about surveillance requests. Media organizations, concerned about government overreach and the protection of journalistic sources, would support efforts to limit such gag orders and promote transparency (Abdo, 2016). The Fourth Amendment requires notice as a critical limitation on privacy invasion (
U. S. Constitution, 1950). Media organizations, advocating for constitutional rights, would support efforts to ensure that government surveillance is conducted in line with constitutional protections, especially concerning privacy and freedom of the press. In summary, media organizations would support Microsoft's challenge to the ECPA provisions because it aligns with their interests in protecting source confidentiality, advocating for transparency in government surveillance, and upholding constitutional rights related to privacy and freedom of the press.
References
Abdo, A. (2016, May 26). Why we’re supporting Microsoft’s Challenge to Secret Surveillance: ACLU
. American Civil Liberties Union. https://www.aclu.org/news/privacy-technology/why-were-
supporting-microsofts-challenge-secret Klosowski, T. (2021, September 6). The State of Consumer Data Privacy Laws in the US (and why it matters)
. The New York Times. https://www.nytimes.com/wirecutter/blog/state-of-privacy-laws-
in-us/ NACDL. (n.d.). Computer fraud and abuse act (CFAA)
. https://www.nacdl.org/Landing/ComputerFraudandAbuseAct Orcutt, M. (2017, April 2). Why Congress can’t seem to fix this 30-year-old Law governing your electronic data
. MIT Technology Review. https://www.technologyreview.com/2017/02/17/243544/why-
congress-cant-seem-to-fix-this-30-year-old-law-governing-your-electronic-data/ Reynolds, G. W. (2019). Time to Update the Electronic Communications Privacy Act? In Ethics in information technology
(pp. 177–179). essay, Cengage Learning. U. S. Constitution. (1950) A bill of rights as provided in the ten original amendments to the constitution of the United States in force . n. p. 195
. [Pdf] Retrieved from the Library of Congress, https://www.loc.gov/item/rbpe.24404400/.
U.S. Department of Justice. (2022, May 19). 9-48.000 - computer fraud and abuse act
. Justice Manual | 9-48.000 - Computer Fraud and Abuse Act | United States Department of Justice. https://www.justice.gov/jm/jm-9-48000-computer-fraud
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