Which is More Confusing: ECPA or the Tax Code?
posted by Paul Ohm
Hearing Sarah Lawsky crack wise so often and so hilariously about the Internal Revenue Code during her visit made me think of a little joke I have used many times when lecturing about the Electronic Communications Privacy Act (ECPA). After warning listeners that ECPA is complex and confusing, I will often say something like, “And I challenge any tax experts in the room to go head-to-head with me in a battle for the title of ‘most confusing part of the U.S. Code.’” The comment usually inspires a few polite titters–from the kind of people who find jokes about comparative statutory complexity funny–so I keep using it.
The problem is, I have no idea whether I have a leg to stand on. Can ECPA really hold a candle to the infamous complexity of the IRC? Is there another part of the U.S. Code that makes both of these seem lucid in comparison?
This connects to James Grimmelmann’s recent series of posts about a new lawyer being a menace to his or her clients. He has been developing the point that mere book larnin’ isn’t enough to prepare a lawyer to represent a client competently, at least not in certain substantive areas, and he offers wills & trusts, bankruptcy, and copyright as examples. What makes a substantive area of law more complicated than another?
Keeping it focused on legislation, what factors conspire to make a statute complex and confusing (and, as an aside, can a statute be complex but not confusing or confusing but not complex?) Within my areas of expertise, here are a few factors that make ECPA complex:
- ECPA defines many terms, and it defines many terms in ways that are disconnected from ordinary meaning. (I’m looking at you, “electronic storage”!)
- ECPA (and more generally speaking, the Wiretap Act which predates ECPA) has many parallel definitions that Congress may not have intended to treat alike (yes, I’m talking about you two, “wire communication” and “electronic communication.”).
- ECPA interacts in mysterious ways with other laws (try to figure out what “readily accessible to the general public” means!)
- ECPA is rarely litigated. Orin Kerr explains how this has made a mess of the law in Lifting the ‘Fog’ of Internet Surveillance: How a Suppression Remedy Would Change Computer Crime Law, 54 Hastings Law Journal 805 (2003).
- ECPA regulates technology, so its meaning often shifts as technology changes. This problem is exacerbated because the basic structure and essential definitions are unchanged from 1986, so a law written to regulate mainframes is today applied to Web 2.0 and cloud computing.
So to all of the tax experts out there, what makes the tax code so complicated? Do all of the factors listed above apply to the IRC as well? The IRC is much longer than ECPA, and it is supplemented with reams of CFRs and other regs, but that can’t be enough alone to earn it the title, can it?
And what say you bankruptcy and copyright experts?
And even more generally, what are the objective metrics we can use to calculate comparative statutory complexity. (Yes, I’m picturing a NCAA-style tourney bracket right now.)