From 1986 to 1987 the Internet Protocol became a standard operating procedure on PCs and the number of networks increased from 2,000 to 30,000. Given how far the Internet has come since that time, it might be surprising to find that the most recent law requiring privacy standards for electronic communications is also from 1986.
With that in mind, several of the largest technology and Internet companies have joined forces with conservative and liberal organizations in a show of solidarity for a proposed amendment to the 1986 Electronic Communications Privacy Act. In a July 12 letter to the Senate, technology and Internet companies such as Microsoft, Oracle, Intel, Adobe, Facebook, Twitter, Google and Yahoo urged passage of the amendment, which would modernize the ECPA and increase the level of protection given to emails and electronic communications from the government.
Under the current law, government agencies wishing to seize emails from third-party servers (like Yahoo or Gmail) need a warrant only for emails less than 180 days old. After that, the emails are considered to be abandoned under the ECPA, and the government only needs a subpoena or court order to get them.
"Court orders and subpoenas are easier for law enforcement to obtain than a search warrant," said Wiebke Lips, a spokesperson for Adobe, in an email. "This may have made sense in 1986, long before the wide-spread adoption of cloud-based email and storage solutions. It does not make sense today."
The proposed amendment from Senators Patrick Leahy, D-Vermont, and Mike Lee, R-Utah, would force government agencies to get a warrant before they could access any emails or electronic communications stored on third-party servers, regardless of when they were received.
"American consumers and businesses large and small are increasingly taking advantage of the efficiencies offered by Web-based email servers and cloud-based storage and computing," the letter states. "Removing uncertainty about the level of legal protection afforded such information will encourage consumers and companies, including those outside the U.S., to utilize these services."
The letter also expressed opposition to a proposal from the Securities and Exchange Commission granting the agency an exemption from the amendment. In an April 24 letter to Senate Judiciary Committee Chairman Leahy, SEC Commissioner Mary Jo White cautioned that the amendment would have a "significant negative impact" on the SEC's enforcement capabilities. White argued that getting a subpoena or warrant for emails every single time was impractical and would encourage individuals or entities under investigation to delete incriminating emails. Instead, White proposed preserving the SEC's ability to get emails directly from third-party providers, "in appropriate circumstances."
"The SEC wants special treatment and wants the law to clarify that they don't need a warrant," says David LeDuc, senior director of public policy at the Software & Information Industry Association—a signatory of the letter. "It's shocking to us that they feel so emboldened to do that."
LeDuc says that he and members of the Center for Democracy & Technology are currently in discussions with the SEC to see if they can come to a resolution.
Instead, the companies and organizations argue that the traditional system should be maintained. A regulatory agency serves a subpoena on the target of its investigation, forcing the target to turn over documents relevant to the subpoena.
"The SEC proposal would turn that process on its head," the letter said. "If a civil regulatory agency could serve process on the target's communications service provider, the provider would be forced to turn over all of the information in the target's account, even if irrelevant to the subject of the investigation or legally privileged."
The amendment has galvanized companies and organizations of all persuasions. Signatories to the July letter span the spectrum of right- and left-wing politics, big business and nonprofit interest groups. Supporters of the amendment include the U.S. Chamber of Commerce, conservative political organization Americans for Tax Reform, Tea Party group FreedomWorks, and Internet civil liberties groups such as the Electronic Frontier Foundation and Demand Progress.
"At Adobe, we believe customer private communications should receive full constitutional protections," said Lips, the Adobe spokesperson. Other groups cite additional consequences of leaving the ECPA unamended.
The Chamber of Commerce, for instance, worries about losing jobs to overseas competitors. "EU companies are pitching customers, telling them they should store stuff in the EU because they have stronger privacy protections than the United States," says Jason Goldman, senior telecommunications policy counsel for the Chamber, in an interview with Law Technology News.
Mason Clutter, national security and privacy counsel at the National Association of Criminal Defense Lawyers (www.nacdl.org), says that many regulatory agencies have criminal components to them, meaning they could share information easily. "Regulatory agencies could obtain private information without a warrant and then hand it over to their criminal law counterparts to be used in prosecutions," says Clutter.
The amendment was passed by the Senate Judiciary Committee in April. A vote before the full Senate has not yet been scheduled. On July 17, the House of Representatives Appropriations Committee unanimously passed a similar amendment giving emails the same protection as regular mail.
"The IRS, SEC and other government agencies have stated Americans don't have an expectation of privacy with their email," said Representative Kevin Yoder, R-Kansas, who co-sponsored the House amendment. "I completely disagree."
Victor Li writes for Law Technology News, a Daily Report affiliate.
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