Data Privacy Day: A Good Time to Approve ECPA Reforms

Today is Data Privacy Day, and there will be plenty of great discussions surrounding the uses of data, how best to protect it, and how to give users the best control over information about them, while protecting innovation and useful online services. One part of data privacy that doesn't get as much attention as it deserves, however, are the issues surrounding government surveillance.

Despite being almost 27 years old now, the law governing when and how the government can peek into your email or other online documents has not been updated. It is time for Congress to step up and bring this law into the 21st century. Because of a quirk in current law, the Fourth Amendment, which you might think would protect your documents online, just as it does when they're in your home, has been interpreted to not apply to things like Web email providers or online cloud storage.

In 1986 Congress wrote a law called the Electronic Communications Privacy Act (ECPA) that attempted to address some of these issues. While it was considerably forward looking for its time, it couldn't have predicted how people would be using the Internet nearly 30 years later. The law thus provides some protections, but not nearly to the level that many citizens might expect.

For example, law enforcement can currently demand your emails from a web mail provider and there is no requirement that they get a judge to sign a warrant. In fact, Google released a report last week showing that, of all the demands that they get from law enforcement for users' email and other data, a full two-thirds come with no warrant. This is a situation that simply must change. It has to change for two major reasons.

The first is based on the civil liberties of our citizens. In a free country, there are rightfully restrictions on what the government can find out about its citizens. The Founders saw the abuse that a government can enact when it can obtain private information about citizens without restraint and included explicit checks on that power in the Fourth Amendment. A change in technology that allows private documents to be stored online instead of in the home does nothing to change that rationale.

Secondly, the change will be good for business too. Privacy today is a selling point as it has been in no other time. Companies online are competing based on how well they can protect their users' data, and they are competing with other companies from around the world. The companies can only do so much, however, because they are obligated by law to hand over to law enforcement any data they have, and the government doesn't even have to get a warrant.

This current reality is enough to convince many individuals and companies who might be interested in taking advantage of the increased productivity, security, and cost savings that come with deploying cloud solutions to hesitate. That fact is hampering the development of one of the most promising and growing sectors in the American economy.

That's why it's great to see some new leadership developing on this issue. CCIA is a member of the Digital Due Process Coalition which has been lobbying hard and building support for the past couple years to see some reform of the 1986 law. Senator Leahy, the man who first wrote the law in 1986, has stepped up to introduce reform legislation that would fix some of the most egregious problems with the original.

Late last year, the Senate Judiciary Committee with bipartisan support approved a version of that legislation. Now Congress must take that last step and turn the bill into law. It is the right thing to do for business, it is the right thing to do for our citizens, for innovation, and it is the right thing to do to be faithful to the civil liberties intent of the Constitution. Advocates for better online privacy are encouraged that House Judiciary Chairman Bob Goodlatte has indicated his willingness to work with Senate Judiciary Chairman Leahy on these privacy reforms.

Sen. Leahy and those who support these efforts must be congratulated and thanked for their work so far, and encouraged to go just that little bit further to finish the work. There can't be a better day than Data Privacy Day, to do so.