Individuals and businesses of all sizes are relying on the privacy of their communications on the internet and using them now more than ever. We have protections, under the law, for our electronic communications in the form of the federal Electronic Communication Privacy Act of 1986 (ECPA), but it needs to be updated. ECPA offers limited protections of our electronic communications, but emails older than 180 days are defined as abandoned and can be obtained by government agencies without the due process (warrants, etc.) needed to obtain information in other formats, such as printed documents.
The state of California has remedied this shortcoming in their state level electronic privacy laws, when Gov. Jerry Brown signed the California Electronic Communications Privacy Act into law. This law will protect electronic communications by requiring a warrant before government agencies can obtain that information or data. Strengthening protect of internet privacy in this way is not only good for individuals but will help protect and promote innovation and economic benefits of technology for American businesses.
Congress has an opportunity to do the same by enacting the Law Enforcement Access to Data Stored Abroad (LEADS) Act, sponsored by Sens. Orrin Hatch (R-UT), Dean Heller (R-NV) and Chris Coons (D-DE). While protecting the privacy of data stored on overseas “cloud” servers, the LEADS Act would also federally eliminate the 180 degree limited protection of electronic communications and require the obtaining of a warrant before federal agencies can obtain access to our communications and data over the internet and stored on “cloud” servers.
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“Law enforcement agencies wishing to access Americans’ data in the cloud ought to get a warrant,” Sen. Coons said. “And just like warrants for physical evidence, warrants for content under ECPA shouldn’t authorize seizure of communications that are located in a foreign country.”
Enacting the LEADS Act will balance needed privacy protection for electronic communications while allowing law enforcement the necessary access, with due process, to information and data. This update in the ECPA is needed to allow American businesses to continue to innovate and be more competitive in the global economy.
The need for the LEADS Act was apparent after the overreach by the Justice Dept. under the Obama Administration, in which Attorney General Eric Holder asserted authority to obtain information hosted on a cloud server by a Microsoft subsidiary in Ireland without going through the normal channels under Irish law to obtain that data.
“Currently, the U.S. government takes the position that it can compel a technology company to turn over data stored anywhere in the world, belonging to a citizen of any country, so long as the data can be accessed in the United States,” Sen. Hatch wrote in a statement on the LEADS Act and also stated, “This is a pro-business, pro-innovation bill that will protect American privacy in the digital age and promote trust in U.S. technologies worldwide.”
The LEADS Act is the most effective reform of ECPA and would be a major benefit for both the privacy of individuals and the protection of critical data and information for American businesses. Congress need to pass the LEADS Act.
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