An expert testifying at a hearing of the House Subcommittee on the Constitution, Civil Rights and Civil Liberties said on Thursday that the government needs to update the Electronic Communications Privacy Act of 1986. Among the criticisms was the fact that it doesn't adequately address location-aware technologies. "With regard to this type of location data, ECPA's statutory framework is profoundly unsatisfying," said Marc Zwillinger of Zwillinger and Genetski, a Washington DC law firm that specializes in cybercrime. "[I]t fails to provide clear guidance for situations in which the government seeks to track an individual's precise movements, leaving the answer to the general application of Fourth Amendment principles and significant variation across jurisdictions." In other words, the wording of the law is extremely nebulous, a situation that can lead to confusion (and civil right violations).
And if it weren't enough that courts and law enforcement are applying decades-old law to cutting edge technology, "the current law is overly secretive because warrants for wiretaps and other communications intercepts are often sealed for years after they are issued," writes Gautham Nagesh in The Hill. He cites U.S. Magistrate Stephen Smith of the Southern District of Texas as charging that "the brunt of that secrecy is borne by people who are never charged with a crime but have the misfortune to contact someone whose communications are being monitored."
Well, we're glad that someone in Washington seems to think that the ECPA needs overhauled -- but we'll remain skeptical until we see something concrete. Regardless, we doubt that a simple change in law will keep McNulty from doing whatever he has to do to make his case. He's real police.