Could Privacy Protection Bills Hinder Law Enforcement?

The Electronic Communications Privacy Act reform bill advances to the Senate floor to better protect email privacy. Meanwhile a House subcommittee considers privacy protections for location data, data which some in law enforcement say is necessary to solve crimes.

By Kenneth Corbin
Thu, April 25, 2013

CIO — The Senate Judiciary Committee Thursday approved a bill that would set new privacy protections for Web-based email and other digital communications, sending the measure to the full Senate for debate.

Judiciary Chairman Patrick Leahy (D-Vt.), one of the authors of the bill, said the legislation is necessary to "better protect Americans' digital privacy" and iron out some inconsistencies in the protections afforded to materials that are stored on a desktop computer and those that reside in the cloud.

Under the current statute, law enforcement authorities have been able to obtain access to emails stored with a cloud provider on the authority of a subpoena, rather than the warrant they would need to obtain those same communications stored locally on a personal computer.

Email Privacy

"If you've got the same files in the cloud, you want to have the same sense of privacy," Leahy says.

Tech Trade Groups Support the ECPA Reform Bill

The Electronic Communications Privacy Act Amendments Act, authored by Leahy and Utah Republican Mike Lee, would reform the 1986 ECPA statute, which Leahy helped draft, to harmonize the privacy protections for digital documents, doing away with the so-called 180-day rule that has provided easier access to older emails, among other provisions.

Several leading tech trade groups quickly hailed the advancement of the ECPA reform bill.

"There are some issues in Washington where there are profound disagreements about what needs to be done. This isn't one of them," Robert Holleyman, president and CEO of BSA, a software industry trade group, says in a statement. "There is broad bipartisan agreement and a groundswell of support for reform among industry and public interest groups. Everyone understands that law enforcement access and constitutional protections should be the same for online files and other digital records as they are for papers stored in a file cabinet."

In approving the ECPA overhaul bill by a voice vote, the Judiciary Committee sends the measure to the Senate floor, where any debate will likely air objections from lawmakers sympathetic to the concerns of law-enforcement authorities who have warned that some of the reform provisions could hinder their investigations.

The Justice Department has gone on record with the view that some of the distinctions in the 27-year-old law have failed to keep pace with the ways that consumers are using technology to communicate.

"We agree, for example, that there is no principled basis to treat email less than 180 days old differently than email more than 180 days old. Similarly, it makes sense that the statute not accord lesser protection to open emails than it gives to emails that are unopened," a DoJ official told a House subcommittee last month.

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