Modernizing online privacy protections can be a win for Congress 

Our entire lives are on the Internet. Emails, texts, pictures, documents, health and financial records – they are all stored in the cloud, giving us the flexibility to access our information whenever and wherever we are. Even though we store this information online, we expect our privacy to be protected in the same way as the papers we physically keep under lock and key.

Under outdated existing laws, however, it isn’t.

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Online content falls under the purview of the Electronic Communications Privacy Act of 1986 (ECPA), a thirty-year-old law that dictates how government can access private Internet communications. Think about it: when ECPA was passed, the Internet was in its infancy. Email was a novelty; things like text messages, streaming video, and social media were still years away. Of course the rules lawmakers set forth in ECPA are not going to address the realities we now face with modern technology. 

As provided by the Fourth Amendment, Americans are entitled to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In the physical world, law enforcement needs to get a warrant before it can get access to the property in your home; at issue in ECPA is an arbitrary distinction between physical and virtual information that doesn’t guarantee that protection for content stored online more than 180 days. It’s time to eliminate the distinction.

Modernizing ECPA would be an easy win for Congress. Both chambers have introduced legislation this year – the Email Privacy Act in the House by Reps. Kevin YoderKevin Wayne YoderK Street giants scoop up coveted ex-lawmakers Kansas Senate race splits wide open without Pompeo Mike Pompeo to speak at Missouri-Kansas Forum amid Senate bid speculation MORE (R-Kan.) and Jared Polis (D-Colo.) and the ECPA Modernization Act in the Senate by Sens. Mike LeeMichael (Mike) Shumway LeeExclusive: Kushner tells GOP it needs to unify behind immigration plan Manufacturing group leads coalition to urge Congress to reauthorize Ex-Im Bank Overnight Defense: GOP grumbles after Trump delays military projects for wall | House panel hints at subpoena for Afghanistan envoy | Kabul bombing raises doubts about Taliban talks MORE (R-Utah) and Patrick LeahyPatrick Joseph LeahyThe Hill's Morning Report — Biden steadies in third debate as top tier remains the same Overnight Defense: Dems grill Trump Army, Air Force picks | House chair subpoenas Trump Afghanistan negotiator | Trump officials release military aid to Ukraine On The Money: Trump delays increase in China tariffs until Oct. 15 | Treasury says US deficit topped trillion in 11 months | Defense spending bill advances over Democratic wall objections MORE (D-Vt.) – that would establish a requirement for law enforcement to obtain a warrant before accessing content stored in the cloud.

The Senate’s version would also eliminate government gag orders for U.S. companies complying with search warrants – an issue that significantly impacts the rights of privacy and free speech for both businesses and customers. Currently, when government agencies obtain search warrants forcing communications service providers to turn over your personal records, the government can issue gag orders preventing these service providers from ever telling you. This is wrong. We have a right to know when the government obtains a warrant to read our emails, and companies should not be impeded from being transparent with their customers.  

Both bills are welcome proposals that have received broad bipartisan support. The Email Privacy Act passed the House in February and the Senate bill, the ECPA Modernization Act, is awaiting deliberation. Software service companies and civil liberties groups have urged Congress to update ECPA for years, and previous efforts have come close. The time has come for Congress to finish the job. American consumers have the right to know their private content is protected, regardless of whether it’s locked in a desk or secured in the cloud.

Reforming ECPA also has broader implications. As U.S. businesses operate on an increasingly global scale, they are forced to comply with a multitude of country-specific laws governing search warrants in the international arena – either from U.S. law enforcement requesting access to the content of foreign citizens' communications stored abroad, or from foreign law enforcement seeking access to the communications of their own citizens stored in the United States. It is another area that needs guidance from Congress, and for that reason we strongly support the bipartisan International Communications Privacy Act as well, introduced by Sens. Orrin HatchOrrin Grant HatchTrump to award racing legend Roger Penske with Presidential Medal of Freedom Trump awards Presidential Medal of Freedom to economist, former Reagan adviser Arthur Laffer Second ex-Senate staffer charged in aiding doxxing of GOP senators MORE (R-Utah), Chris CoonsChristopher (Chris) Andrew Coons The 13 Republicans needed to pass gun-control legislation Democratic senator warns O'Rourke AR-15 pledge could haunt party for years Scalise says it's unclear if bipartisan deal on guns will happen MORE (D-Del.), and Dean HellerDean Arthur HellerThis week: Barr back in hot seat over Mueller report Trump suggests Heller lost reelection bid because he was 'hostile' during 2016 presidential campaign Trump picks ex-oil lobbyist David Bernhardt for Interior secretary MORE (R-Nev). Modernizing our electronic privacy laws – through both of these bills – are important steps toward setting a global standard for access to data while meeting our privacy expectations.

Reform should have happened years ago and it is now an urgent imperative. We cannot continue to allow an outdated law to undermine privacy protections for some of our more sensitive information. It is time for Congress to take swift, bipartisan action to modernize ECPA and restore Americans' fundamental rights to personal privacy.

Tommy Ross is Senior Director, Policy at BSA, The Software Alliance. He previously served in senior positions in the House of Representatives, Senate and Department of  Defense.


The views expressed by this author are their own and are not the views of The Hill.