April 26, 2004 | By Donna Wentworth

It's the Privacy Law, Stupid

Declan McCullagh rightly points out in his latest CNET piece on Gmail that EFF opposes California Senator Liz Figueroa's (D-Freemont) poorly conceived anti-Gmail bill (PDF) -- but not because we oppose any and all legislation to address the privacy concerns raised by new technology.

A bill to target a single new email service or technology indicates misdiagnosis of the disease; the problem isn't specific to one company or service. It's a systemic problem, and it should be addressed as such.

"Much of the problem lies not with Google or any of the other companies that offer free email, but with the fractured, inconsistent and often incoherent nature of privacy law in the U.S and the fact that few of us take advantage of technical protections such as encryption," says EFF Legal Director Cindy Cohn.

"As Larry Lessig points out in his book Code, new technology can often take a latent problem in the law and make it patent. Under the Electronic Communications Privacy Act, email held by other people, including your ISP, is treated much differently than email on your own machine. But email privacy shouldn't be the sole province of those who can purchase and maintain their own email servers."

So what does EFF propose to address the problem? Updating ECPA to reflect a number of contemporary concerns -- including the possibility that a large number of people will now allow a third party to archive a gigabyte or more of their personal email for years at a stretch. As we previously noted, this would create a treasure trove of highly nuanced personal information that is far too easily compromised.

"That's why EFF has long urged Internet users to exercise their hard-earned right to encrypt email," adds Cohn, "and why it's becoming more and more important to reform ECPA so that the rules governing email are sane and fit with our reasonable expectations of privacy."

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