1986 Privacy Law Is Outrun by the Web

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enacted in 1986, before cellphone and e-mail use was widespread, and before social networking was even conceived -- is outdated, affording more protection to letters in a file cabinet than e-mail on a server.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. “Some people think Congress did a pretty good job in 1986 seeing the future, but that was before the World Wide Web,” said Susan Freiwald, a professor at the University of San Francisco School of Law and an expert in electronic surveillance law. “The law can't be expected to keep up without amendments.” 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.