Golden Gate University Law Review


This Comment is concerned with the Electronic Communications Privacy Act’s (ECPA’s) failure to consistently protect the geolocational data associated with electronic communications. ECPA was crafted in 1986 to protect electronic communications, a fledgling technology at the time. Today, ECPA remains largely unchanged and still controls the government’s right to access individuals’ electronic communications. Senator Leahy, who originally drafted ECPA, has called for reform of the Act, stating that “today, this law is significantly outdated and out-paced by rapid changes in technology.” Senator Leahy has proposed significant changes to the Act that would eliminate many of its outmoded standards and offer increased protection of individuals’ privacy. The proposed amendments, however, fail to address one key privacy issue: how much data about a communication can be compelled from a web service provider by the government without a warrant. This ambiguity has led to the disparate treatment of different types of geolocational data in the courts. While proposed amendments to ECPA would alleviate many of the law’s inadequacies, they stop short of properly protecting geolocational data and fail to comprehensively address inconsistencies in the courts’ treatment of searches of this data.

Part I of this Comment explores the importance and popularity of location-based web services. Part II discusses the different technologies that drive these services, and the services themselves. Part III explains how the law treats the disclosure of geolocational data, and examines how courts have analogized electronic communications to traditional communications, resulting in conflicting rules about the disclosure of geolocational data. Part IV argues that these rules fail to properly protect users’ reasonable expectations of privacy, and proposes that ECPA be amended to affirmatively and equally protect all types of geolocational data, regardless of the underlying technology. Finally, Part V examines technology providers’ frustration with the current state of the law.

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