Originally published in The Des Moines Register December 2015
Electronic Communications Privacy Act
The digital life of everyday Iowans is under continuous attack. As a fellow with the Information Systems Security Association and the president/CEO of Pratum, a national information security consulting firm headquartered in Ankeny, I’m concerned about the lack of action Congress has taken to protect the privacy of the online communications of every American citizen.
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to establish standards for government access to private information transmitted and stored over public networks. These public networks have become what we now know as the Internet. Nearly three decades ago, Americans had no idea that the Internet would transform the way we live and work. We use cloud providers on the Internet to store our email, phone contacts, pictures, computer backups and more. Our entire digital identity and that of our children is often stored in a large data center somewhere on the Internet. The legislation simply hasn’t kept up with the times.
Under ECPA, government agencies can gain access to anything we store in the cloud without a warrant from a judge. This loophole, written in a time when Americans hardly ever stored anything online, clearly bypasses the Fourth Amendment — a key safeguard against warrantless search and seizure for our personal property. The Fourth Amendment protects our snail mail and the files we physically store in our homes and offices. While it should protect our digital files as well, ECPA as written undermines the Fourth Amendment. ECPA reform would rectify this issue and protect our online lives the same way as our offline lives.
Bipartisan Support for ECPA Reform
Fortunately, bipartisan efforts in the House and Senate seek to bring ECPA into the digital age and fix this loophole in Iowans’ online privacy rights. The Email Privacy Act has more than 300 sponsors — a supermajority in the House — making it the most cosponsored bill in the House that has not yet passed. Meanwhile the ECPA Amendments Act is supported by almost a quarter of the Senate. Reform is also supported by a diverse group of privacy advocates, civil libertarians, former prosecutors, businesses, start-ups, and more than 100,000 individuals across the full political spectrum, but ECPA reform still hasn’t moved forward in Congress.
Reasons for Resistance
Some law enforcement and civil agencies like the Security and Exchange Commission and Federal Trade Commission are attempting to block reform to preserve their special exemptions from the Fourth Amendment, and unfortunately some congressional leaders are listening to these concerns. However, the original ECPA legislation never intended to give these extraordinary powers in the first place; it set out to protect our digital privacy.
Furthermore, the reform legislation already provides for emergency authority, such as in cases where serious injuries or deaths might occur. Some law enforcement officials claim we would be unable to stop crimes without the warrantless searches. Nothing could be further from the truth. When law enforcement is forced to work within the bounds of the constitution and not take shortcuts, we ensure due process for the innocent and are more assured of conviction for the guilty.
Moving Congress Forward
The support for reform is clear. California and other states have already passed their own versions of ECPA reform in recent weeks. Republicans, Democrats and everyone in between have come together to advocate for our online privacy rights. Now it’s time for Congress to move forward and make real progress to extend full protection of our Fourth Amendment rights to all Americans nationwide.
We use the Internet for just about everything today: emailing family and friends, saving important documents in the cloud, and sharing photos and messages on social media. In the digital age, Americans have a reasonable expectation that our private online messages are indeed private, and we deserve to have our email protected from warrantless search and seizure. With hundreds of thousands of supporters across the country advocating for reform, Congress is running out of reasons to delay.