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House Democrats Propose Measure to Revamp ECPA House Democrats Propose Measure to Revamp ECPA

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Tech

House Democrats Propose Measure to Revamp ECPA

August 2, 2012

Top Democrats on the House Judiciary Committee introduced legislation on Thursday that would revamp a two-decade-old law that deals with law enforcement access to electronic communications, saying its outdated legal protections are hampering the growth of cloud computing and other technologies.

The bill introduced by Judiciary ranking member John Conyers, D-Mich., and Constitution Subcommittee ranking member Jerrold Nadler, D-N.Y., would update the Electronic Communications Privacy Act to reflect the massive changes in technology since the law was first enacted in 1986.

Currently, the law as interpreted by the courts, provides varying degrees of protection for electronic communications such as e-mail. For example, law enforcement currently does not need a warrant to obtain a cell phone user's location data or to get e-mail that is stored with a third-party provider such as Google and is older than 180 days.

"ECPA was passed in 1986, well before we commonly used the Internet for e-mail, much less for 'cloud computing' and remote storage," Nadler said in a statement. "This new legislation will ensure that ECPA strikes the right balance between the interests and needs of law enforcement and the privacy interests of the American people."

The bill would require law enforcement to obtain a warrant for any wire or electronic communications and set uniform standards and notice rules for when government can obtain such data.

A broad coalition of privacy advocates and technology companies and groups known as the Digital Due Process coalition has been pushing lawmakers for more than two years to update ECPA. The issue has gained new attention after Rep. Edward Markey, D-Mass., last month released documents that showed law enforcement made 1.3 million requests for mobile phone records from wireless providers in 2011 alone.

"Reforming ECPA is critical to spur the growth of cloud computing," Business Software Alliance President and CEO Robert Holleyman said in a statement. "Any country that wants to succeed in the cloud needs clear and consistent rules to protect users' privacy while enabling the free flow of data and commerce. One of the problems U.S. cloud providers face today is other countries casting doubt on our privacy and security laws. Reforming ECPA would send a strong signal that America intends to remain a leader in the cloud."

Senate Judiciary Chairman Patrick Leahy, D-Vt., introduced his own ECPA reform bill last year but has yet to mark up the measure. The bill has faced resistance from the Justice Department, which opposes requiring a warrant for access to most electronic communications. The Nadler-Conyers bill also faces long odds, particularly given how little time is left on Congress' legislative calendar.

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