Time to Safeguard Electronic Communications

The technological advancements outpacing legal updates now threaten our privacy, security and economic competitiveness. The Digital Due Process coalition (of which my center is a part) has taken the lead trying to update the Electronic Communications Privacy Act. Although the ECPA was forward-thinking when passed a few decades ago, it’s long in the tooth now considering how quickly technology has evolved.

Even as the politicians start campaigning, it’s reassuring to find a left-right-libertarian working group coming together with a solid good government proposal.

People use email and mobile phones much more and in far more creative ways then when the law was last overhauled. The growing importance of cloud computing and social networking illustrate the need for action–so do new phone applications! Law enforcement requires clear legal guidance to do its job right–and protect against abuses.

As far back as April 2010, then Inspector General Glen Fine testified (pdf) to the US House Judiciary Committee about the FBI’s repeat and widespread misuse of exigent letters and “sneak peeks.” Part of the problem is the myriad different legal standards that law enforcement must follow. Reform is needed to clarify personnel training to limit abuses.

The current lack of clear legal rules is already forcing companies to reconsider where to do business. Why set up the cloud computing servers here when other countries may be offering a better legal environment.

Beyond the need to inform consumers, failure to reform ECPA will have an impact where it counts: Jobs. Right now U.S. based innovators are leading the way in online commerce and cloud computing. To compete globally, they need clear legal rules. Just imagine a California based technology company with a potential client in Australia. The data is managed in California, but backed up in Delaware. Which rules apply? Without ECPA reform, the “potential” Australian client becomes the “missed Australian opportunity.”

Unlike the budget debates and government shutdown threats, this is one issue where reform offers a good opportunity for bipartisan agreement–and can help the employment environment. Updating the technological rules would give businesses the green light they need invest here and create jobs–jobs that are more likely to migrate offshore the longer Congress dallies.

When the American Civil Liberties Union on the left, Grover Norquist’s Americans for Tax Reform on the right and business groups large and small come together with a practical proposal for needed reform, Congress has no excuse not to give President Obama the opportunity to sign the legislation.

Here are the principles:

1. The government should obtain a search warrant based on probable cause before it can compel a service provider to disclose a user’s private communications or documents stored online.
2. The government should obtain a search warrant based on probable cause before it can track, prospectively or retrospectively, the location of a cell phone or other mobile communications device.
3. Before obtaining transactional data in real time about when and with whom an individual communicates using email, instant messaging, text messaging, the telephone or any other communications technology, the government should demonstrate to a court that such data is relevant to an authorized criminal investigation.
4. Before obtaining transactional data about multiple unidentified users of communications or other online services when trying to track down a suspect, the government should first demonstrate to a court that the data is needed for its criminal investigation.

A quick test will come when the Senate holds a hearing “The Electronic Communications Privacy Act: Government Perspectives on Protecting Privacy in the Digital Age” Wednesday  morning (4/6/2011). Let’s see if we can work together for something that benefits us all.