Industry leaders, lawmakers to examine updates electronic communications rules

But industry leaders told lawmakers on Wednesday that the current law markedly falls short of that standard, and has in some cases stifled innovation and confused businesses.

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According to Annemarie Levins, associate general counsel for Microsoft, ambiguity about how EFCA applies to cloud computing has forced many businesses to steer away from that technology, even though it offers them a cheaper alternative for storing their data.

"Ultimately, smart targeted reforms of ECPA are essential for restoring the balance between privacy and law enforcement in the digital age...," said Levins, whose company is part of the "Digital Due Process" coalition now urging changes to ECPA.

Meanwhile, other cutting-edge tools also occupy a growing grey area in which it is not clear what law enforcement must do to obtain access to those records, and when consumers' privacy trumps those requests, said James X. Dempsey, vice president for public policy at the Center for Democracy and Technology.

For example, Dempsey said wiretapping rules govern how law enforcement can collect e-mail while it is in transit from sender to recipient. But a whole different class of rules apply to that same message once it reaches the target's inbox. And ECPA's warrant standard comes into effect after a user opens the e-mail, as it is now on his or her inbox, though it is protected after 180 days. All of that differs greatly from the simple, Fourth Amendment protection that would be afforded to the e-mail had the user printed it out and left it on a desk, Dempsey said.

What's needed, he concluded, is "consistent application of the warrant standard to private communications and documents," especially because "users may not even realize" the legal standards differ.

Lawmakers seemed receptive of their witnesses' arguments, but some appeared to be somewhat confused by the myriad of legal standards and technical terms that form the basis of ECPA. The complexity of the issue led Nadler early in the hearing to promise more hearings to further explore possible changes to the law.