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    Analysis at New York Times: 1986 Privacy Law Is Outrun by the Web

    In a news analysis, the New York Times considers the 1986 Electronic Communications Privacy Act (“ECPA, “also known as Title 18 § 2511 of the United States Code):

    As Internet services — allowing people to store e-mails, photographs, spreadsheets and an untold number of private documents — have surged in popularity, they have become tempting targets for law enforcement. That phenomenon became apparent over the weekend when it surfaced that the Justice Department had sought the Twitter account activity of several people linked to WikiLeaks, the antisecrecy group.

    Many Internet companies and consumer advocates say the main law governing communication privacy — enacted in 1986, before cellphone and e-mail use was widespread, and before social networking was even conceived — is outdated, affording more protection to letters in a file cabinet than e-mail on a server.

    They acknowledge that access to information is important for fighting crime and terrorism, but say they are dealing with a patchwork of confusing standards that have been interpreted inconsistently by the courts, creating uncertainty. […]

    Law enforcement agencies have reacted in the aftermath of 9/11 and argue the opposite side of the coin, fearing that changing communications technology will impede their access to crucial information. […]

    Still, Internet companies chafe at what they say is the weaker protection under the law afforded online data. They contend that an e-mail should have the same protection from law enforcement as the information stored in a home. They want law enforcement agencies to use a search warrant approved by a judge or a magistrate rather than rely on a simple subpoena from a prosecutor to obtain a person’s online data.

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