Electronic Communications Privacy Act - Essay Example

Electronic Communications Privacy Act Electronic Communications Privacy Act Introduction The cyber space is growing dynamically andat a rapid pace, which has resulted in more features, channels of communication and means of sharing resources within the cyberspace. Nonetheless, the Electronic Communications Privacy Act (ECPA) has been slow in capturing the dynamic changes that are occurring (Electronic Privacy Information Center, 2012). Accordingly, there is no legal framework to guide the use of features such as cloud computing and various forms of virtual computing. The above recent developments have altered the cyber space in various ways, which require a legal framework to manage the workings of the new features created by the development in computer and internet sector (Matsuura, 2003). Ideally, the act seeks to ensure sanity and protection of privacy, but the rapid changes in the communication sector especially in the internet-based sector has rendered the act virtually ineffective while other laws such as the patriotic act have made it impossible to enhance privacy. Background In its present form, the ECPA has countless flaws owing to the dynamism of communication. The inadequacies of the act can be linked to its enactment. The ECPA was enacted in 1986 when the communication sector was not expansive or as specialized and innovative as it is today. As such, most of the concerns were addressed generally. Today privacy has become a major concern but back then, it was not a key concern. Fundamentally, the act seeks to enhance privacy but in light of other laws such as the patriotic act, it is ineffective (Electronic Privacy Information Center, 2012). The patriotic act granted the government huge leeway in compromising or breaching privacy in all the forms of electronic communications. The government can compromise the privacy of communications in the form of images, signs, writings and even oral communication due to the flaws of the law as revealed by United States v. Councilman. In the above suit, the defendant sought to block the government from accessing email in temporary storage prior to the recipient reading them. Nevertheless, on appeal, a full court of appeal revealed that e-mails on transit are not protected from surveillance (Packard, 2012). From the above, it is evident that despite having strict clauses on privacy ECPA is inherently inadequate. Inadequacies and Relevant Changes Surveillance is one of the most controversial issues in America owing to its extensive nature. The surveillance involves electronic data, which is protected by this act. Nonetheless, the government has seemingly unlimited access to electronic data. One of the key reforms required to ensure that the revelation of a user’s personal information is barred expressly (Packard, 2012). Currently, the congress is in the course of reviewing the act to ensure it is effective in safeguarding privacy. The act has to failed in one of its core objectives which is to safeguard privacy of all forms of data or communications. As such, there was need to review to ensure that it can address the challenges of modern-day data privacy. For instance, this law regards an email that has been in a server for more than six months or a hundred and eighty day as abandoned (Electronic Privacy Information Center, 2012). Subsequently, law enforcements agencies only require a statement elaborating its relevance to an investigation to access it. This statement is however subject to judicial review. Once the judicial approval is granted the law enforcement agencies will have unlimited access to emails. This act has opened up a leeway for people and agencies to breach privacy especially with regard to information stored in servers, which has enabled the government authorities to triangulate calls undeterred on real time basis. The ECPA has many loopholes with regard to enforcing privacy over any form of data therefore requiring am in-depth review to enhance its compliance. One of the recent developments in the computer and communication sector is the emergence of cloud computing. This new development aims at harnessing aspects of computers that can be rendered as services with the key aim being cost reduction in organizations (Matsuura, 2003). Cloud computing ensures the sharing of computer resources such as software, computer systems, information and servers. This ensures the utilization of idle capacities by firms that require the underutilized computer facilities or infrastructure. The ECPA does not capture such aspects of the communication sector, which are developing rapidly (Packard, 2012). Most organizations are making use of clouding computing services to reduce cost, as they do not have to procure certain IT infrastructure since they can make use of the shared facilities offered through cloud computing services. The lack of a legal framework that will guide the use of clouding computing services makes the industry vulnerable to unscrupulous entities. The legal framework should provide a platform for the exploitation of cloud computing which will relieve companies the burden of procuring certain infrastructure (Electronic Privacy Information Center, 2012). A legal framework would support the rapid development of the sector to ensure that more companies adopt the services. With respect to cloud computing, the act lacks clauses which would provide a legal framework for cloud computing. Changes to the act to enhance cloud-computing services should address various aspects such as agreements between companies to provide relevant services, privacy of customer information, security of the systems and the services that cloud-computing entities can offer. The legal framework would also promote specialization of entities and differentiation in the corporate sector. Cloud computing proponents have postulated that organization would procure computing services and ‘pay on a go model’ while focusing on their core objectives. Organizations would not require IT departments, which reduce specialization in entities while eating into entities’ profits. As such, having a proper legal framework would enhance cloud-computing service massively (Electronic Privacy Information Center, 2012). Moreover, it would also provide a legal framework, which the legal system may use to resolve disputes in the sector. Currently, the ECPA is inherently inadequate which limits its ability to help in settling disputes in the communication sector. The advantages of having the ECPA crafted again to capture the recent developments in cloud computing reveal how inadequate the current act is amidst an innovative and an ever-expanding communication and internet sector. Adequacies Despite its massive inadequacies, there are certain positives from the act. Firstly, for an act grafted close to three decade ago, it encouraging make out that it sought to secure privacy across all forms of communication when many people never felt the need to have secure communication line. By then, there was minimal public awareness on liberties in the communication sector (Matsuura, 2003). However, this has changed massively over the last two and half decades. Despite its initial aim of protecting the privacy of communication subsequent legislation such as the patriot act have eroded the gains that would have been realized if the act were strengthened as opposed to weakening by act that paved the way for wiretaps and other surveillance activity on the premise of national security (Electronic Privacy Information Center, 2012). The congress has also been slow to consolidate the developments that are occurring daily in the communication sector. Conclusion Based on the analysis, the ECPA is inherently lacking in its capacity to address the challenges of a modern-day internet based communication sector. The act has weak clauses on privacy, which were diluted by subsequent legislation. The act therefore has many inadequacies, which would require review and relevant amendments. The changes must enhance privacy by increasing the role of judiciary in overseeing statements or warrants to access data. The act should also increase the threshold of evidence required in a judicial review of a statement or warrant seeking access to data. The act also lack in another aspects which makes it outdated. Having been drafted in the mid1980s, it does not capture aspects such as clouding computer, which emerged later largely due to lack of timely amendments. As such, the ECPA is outdated with regard to the developments, which are occurring in the internet based communication sector. Based on the two major frailties the act has become innately ineffective for the modern day communication sector. References Electronic Privacy Information Center. (2012). Electronic Communications Privacy Act (ECPA). Retrieved on August 15, 2014 from http://epic.org/privacy/ecpa/ Matsuura, H. (2003). Managing Intellectual Assets in the Digital Age. Norwood, MA: Artech House Publishing. Packard, A. (2012). Digital Media Law. New York, NY: John Wiley and Son. . Read More