IN FEBRUARY 1928 the Supreme Court heard the case of Roy Olmstead, whose conviction on bootlegging charges relied on evidence obtained by tapping his phones.
The ECPA could also do with a thorough scouring. When it became law there were only 340,000 mobile-phone subscribers in America, and the internet was the province of hobbyists and academics. Distinctions that made sense then no longer do. E-mail is subject to differing sets of protections when it is being typed, sent and stored. A bank statement printed out and kept in a drawer, saved on a personal computer or stored in a private e-mail account is also subject to varying standards.
Metadata (the records of who people call and e-mail, and when, as distinct from the content of conversations) can now be amassed on a vast scale, and run through powerful software that can use it to create a fairly complete portrait of a person’s life and habits—often far more complete than just a few recorded conversations. It deserves more protection than it now receives. And citizens, especially those suspected of no crime whose data is gathered up in a dragnet, deserve more clarity on what law enforcement does with their data and how long they keep it. Even with the best of intentions, the ECPA is almost impossible to apply consistently or fairly. Such murkiness serves no one well.