For students at the University who need to be productive — that is, all of us — there’s no shortage of technology available. Though paper and pencil is still the standard for note-taking, many students use applications like Microsoft Word or Google’s processing suite to take notes and do schoolwork.

This technology can be used in non-school related applications, as well. The collaborative capability of Google Docs, especially, makes it an attractive program for groups working on presentations and housemates looking to keep track of finances, as well as enabling access to documents at any computer for those who don’t want to lug a laptop around. For those of us who are leery of storing all of our files in the cloud but would still like to back them up to access remotely through another device, free subscriptions to cloud services let students specify certain file types on their hard drive for backup and retrieval in the cloud.

The variety and versatility of these web-centered services is remarkable. Their introduction and widespread use, though, begs a rather obscure but constitutionally important question: if you use one of these services, how does existing electronic privacy legislation protect your content against government search and seizure? The Senate is set to vote on a bill sponsored by Sen. Patrick Leahy (D–Vt.) that would majorly amend the Electronic Communications and Privacy Act, which has served as the basis of privacy policy but is overwhelmingly outdated. Though the bill’s final text hasn’t been released yet, it will likely spell out what forms of electronic communication law enforcement needs warrants to access. Policy in the United States is unclear as Google Docs, Twitter and text messages weren’t part of the equation when the original legislation was passed 20 years ago — leading to heated debates on what should be protected and not.

Though Leahy retracted some of the bill’s more controversial provisions after withering opposition, particularly from the American Civil Liberties Union and the Center for Democracy and Technology, the privacy of electronic communications is still in question. Under the Patriot Act, some law enforcement can gain access to electronic communications by asserting that the information they want access to is relevant to an ongoing investigation. But, it has been 11 years since that piece of legislation was passed, and both the programs used to track electronic communications and the communications themselves have advanced considerably. Moreover, that law enforcement can get access to these electronic communications with no more than a subpoena may be a violation of the Fourth Amendment, which states that “the right of the people to be secure … against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”

There needs to be a substantial overhaul of privacy law pertaining to electronic communications, and it needs to be done in a way that can make the law catch up with current technology and have it remain relevant as that technology evolves. That way, users of emerging technology can be assured that their communications, in whatever form, are secure.

Granted, law enforcement needs to be able to do their job, and having the ability to intercept electronic communications is necessary in this day and age. However, giving them that ability without having to show probable cause represents a weakening of privacy protection that should give all Internet-savvy students pause. If law enforcement agencies believe that the contents of a person’s Facebook, Google, Dropbox or other online account are important to an investigation, let them get a warrant. That way law enforcement can still gain access if necessary, and users of these services can rest easy knowing that their privacy will not be intruded upon unless a judge decides that such an intrusion is necessary.

Eric Ferguson can be reached at ericff@umich.edu.

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