A 25-year-old privacy law limiting government access to electronic communications needs updating to reflect the "cloud" and other 21st century advances, a coalition of free-market advocates said on Wednesday, joining a broad range of technology companies, public interest groups, and privacy advocates urging Congress to update the Electronic Communications Privacy Act.
The coalition, which includes Americans for Tax Reform, the Competitive Enterprise Institute, FreedomWorks, and Tech Freedom, urged Senate Judiciary Chairman Patrick Leahy, D-Vt., to extend Fourth Amendment protections against unlawful search and seizure to digital documents and other electronic information.
They say the 1986 law's outdated protections are of a particular concern given the growing use of cloud computing, which involves the use of computer servers operated by a third party. Most Americans have some information in the “cloud” if they use a free e-mail service such as Google’s Gmail or Microsoft’s Hotmail.
The coalition noted that while data stored on local computers operated by the owner of the information is protected by the Fourth Amendment, data stored with a third-party cloud provider is not.
“Major decisions regarding the future architecture of cloud computing are being made right now,” the coalition said in its letter. “If Congress fails to enact ECPA reform, cloud computing services may be designed to rely on servers outside the U.S. Not only would this harm U.S. competitiveness, it could also, ironically, deny U.S. law enforcement access to cloud data—even with a lawful warrant.”
In particular, the coalition urged Congress to amend ECPA to require law enforcement to get a search warrant before it can obtain private content stored online or track the location of a mobile communications device.
The Senate Judiciary Committee met Wednesday to examine the issue of how to ensure law enforcement can gain access to the communications for investigations while still respecting privacy and civil liberties.
“While still a useful tool for our government, today, ECPA is a law that is hampered by conflicting standards that cause confusion for law enforcement, the business community, and American consumers alike,” Leahy said in his written statement Wednesday. “For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent.”