Hearing on Electronic Communications Privacy Act Reform and the Revolution in Location Based Technologies and Services

Abstract

This testimony, presented at a congressional hearing entitled “Electronic Communications Privacy Act Reform and the Revolution in Location Based Technologies and Services,” discusses the role of magistrate judges in handling surveillance requests by law enforcement, summarizes reported cases dealing with cell phone tracking, and suggests possible reforms to ECPA. The task of finding the appropriate balance between privacy and law enforcement belongs first of all to the political branches of government. As a judicial officer, I do not presume to advocate for either side of that debate. That said, from a magistrate judge’s perspective, there are two systemic flaws in the current statutory scheme that ought not be preserved in the next: undue complexity and undue secrecy. Simplicity may not be entirely achievable in a statute dealing with complicated technology. Likewise, transparency is not practicable for every phase of a criminal investigation. But complexity and secrecy take hidden tolls in the form of diminished privacy protection, unchecked judicial (and executive) power, and loss of public confidence in the judicial system. The 21st century version of ECPA should recognize and avoid these dangers.