Proposed legislation would reform digital privacy law | SC Media
TDR, Legislation, Privacy

Proposed legislation would reform digital privacy law

May 23, 2011

A bill recently introduced in the U.S. Senate would update a 25-year-old digital privacy law to require authorities to obtain a court-issued search warrant before retrieving a person's email and other content stored in the cloud.

The proposed legislation, introduced Tuesday by Sen. Patrick Leahy, D-Vt., would amend a law enacted in 1986 called the Electronic Communications Privacy Act (ECPA), which set standards for government surveillance of telephone conversations and other electronic communications.

“This law is significantly outdated and outpaced by rapid changes in technology,” Leahy said in a statement. He authored both the 1986 law and the proposed bill to amend it.

The newly introduced ECPA Amendments Act would require authorities to obtain a search warrant based on probable cause before obtaining customer information from electronics communications, cloud computing or other technology service providers.

Under current law, law enforcement does not need to acquire a search warrant to obtain email communications that have been stored for longer than 180 days. The proposed legislation would eliminate this rule and require a search warrant regardless of how old an email is.

It would also implement new protections for geolocation information that is collected, used or stored by smartphones or other mobile technologies. If enacted, the bill would mandate a warrant to access or use an individual's smartphone or other electronic communications device to obtain geolocation information.

A coalition of privacy groups and technology companies, called Digital Due Process, has been pushing since last year for the reform of ECPA. The group, which includes AOL, the American Civil Liberties Union, Google and Microsoft, argues that the ECPA is a “patchwork of confusing standards” that no longer adequately protects the vast amount of personal data generated by the latest digital communication devices and services.

“As technology has advanced, the laws protecting Americans from unreasonable search and seizure have failed to keep up,” said Kelly William Cobb, executive director of Americans for Tax Reform's DigitalLiberty.Net, a nonprofit that promotes consumer choice in the technology and media industries. “The reforms take an important step toward updating antiquated protections for consumers utilizing modern-day cloud and mobile services.”

Leahy's measure, however, does not do away with the FBI's authority, under the national security letters, to obtain digital information about a person, without a court order, if authorities consider it relevant to a terrorism or national intelligence case.

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