Privacy protections in danger of permanently falling behind

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Singularity in communications networks – the grand permanent fusion of Internet, landline and mobile communications – is something good for consumers, except when privacy and other laws fail to keep pace.

American Civil Liberties Union privacy researcher Chris Soghoian has uncovered just such an example, a grey area of the law with protection text message metadata when the message is delivered to the recipient from an Internet service provider via SMS.

Metadata for messages sent wholly between two Internet servers requires a warrant or court order before law enforcement can see it, whereas a subpoena is all that's required before police can see the metadata for communications sent through the telephone system.

When a text message originates from an Internet source but reaches the recipient through SMS, providers must decide which legal regime to apply, Soghoian says. Google Voice, he says, has opted for the subpoena route, while Facebook and Twitter require the court order.

Inconsistency between providers is a bad state of affairs, good neither for law enforcement nor consumers.

But this grey area points to the larger problem of inconsistencies in privacy protections based on outdated assumptions about technology. My degree of privacy in text messaging shouldn't be contingent on whose server the message traverses; in the era of network singularity, nobody should care precisely how the text was delivered. Similar holes exist with matters such as the privacy of stored emails versus stored paper mail – the former has far more privacy attached to it than the latter, a state of affairs laughable in a time when email has long displaced an old-fashioned letter as the primary means of long form communication.

That privacy laws need updating is no secret – but Congress has been slow to act even as technology continues to leap ahead. Unfortunately, if it waits too long, we might find the current lack of privacy gels into a permanent situation – and that would be an unwanted diminishment of the bright future promised by mobility everywhere and ubiquitous communication.- Dave

Regular readers may have noticed Molly Walker's absence – fortunately, it's just temporary until this spring when she will again take the helm of FierceMobileGovernment.