An amendment proposed to the Electronic Communications Privacy Act
may make it more difficult to obtain subscribers' webmail.
Extracted from
Law Technology News
July 19, 2013
From 1986 to 1987
the Internet Protocol became a standard operating procedure on PCs and the
number of networks increased from 2,000 to 30,000. Given how far the internet
has come since that time, it might be surprising to find that the most recent law requiring privacy standards for electronic
communications is also from 1986.
With that in mind,
several of the largest technology and internet companies have joined forces
with conservative and liberal organizations in a show of solidarity for a
proposed amendment to the 1986 Electronic Communications Privacy Act. In a July
12 letter to the Senate, technology and internet companies
such as Microsoft,
Oracle, Intel, Adobe, Facebook, Twitter, Google, and Yahoo
urged passage of the amendment, which would modernize the ECPA and increase the
level of protection given to emails and electronic communications from the
government.
Under the current
law, government agencies wishing to seize emails from third-party servers (like
Yahoo or Gmail) need a warrant only for emails less than 180 days old. After
that, the emails are considered to be abandoned under the ECPA, and the
government only needs a subpoena or court order to get them. "Court orders
and subpoenas are easier for law enforcement to obtain than a search
warrant," said Wiebke Lips, a spokesperson for Adobe, in an
email. "This may have made sense in 1986, long before the wide-spread
adoption of cloud-based email and storage solutions. It does not make
sense today."
The proposed
amendment from Senators Patrick Leahy (D-Vermont) and Mike Lee (R-Utah) would
force government agencies to get a warrant before they could access any emails
or electronic communications stored on third-party servers, regardless of when
they were received. "American consumers and businesses large and small are
increasingly taking advantage of the efficiencies offered by web-based email
servers and cloud-based storage and computing," the letter states.
"Removing uncertainty about the level of legal protection afforded such
information will encourage consumers and companies, including those outside the
U.S., to utilize these services."
The letter also
expressed opposition to a proposal from the Securities and Exchange Commission
granting the agency an exemption from the amendment. In an April 24 letter to Senate Judiciary Committee Chairman
Leahy, SEC Commissioner Mary Jo White cautioned that the amendment would have a
"significant negative impact" on the SEC's enforcement capabilities.
White argued that getting a subpoena or warrant for emails every single time
was impractical and would encourage individuals or entities under investigation
to delete incriminating emails. Instead, White proposed preserving the SEC's
ability to get emails directly from third-party providers, "in appropriate
circumstances."
"The SEC wants
special treatment and wants the law to clarify that they don't need a
warrant," says David LeDuc, senior director of public policy at the
Software & Information Industry Association — a signatory of the letter.
"It's shocking to us that they feel so emboldened to do that." LeDuc
says that he and members of the Center for Democracy & Technology are
currently in discussions with the SEC to see if they come to a resolution.
Instead, the
companies and organizations argue that the traditional system should be
maintained.A regulatory agency serves a subpoena on the target of its
investigation forcing the target to turn over documents relevant to the
subpoena. "The SEC proposal would turn that process on its head," the
letter said. "If a civil regulatory agency could serve process on the
target's communications service provider, the provider would be forced to turn
over all of the information in the target's account, even if irrelevant to the
subject of the investigation or legally privileged."
The amendment has
galvanized companies and organizations of all persuasions. Signatories to the
July letter span the spectrum of right and left wing politics, and big
business, and non-profit interest groups. Supporters of the amendment include
the U.S. Chamber of Commerce, conservative political organization Americans for
Tax Reform, Tea Party group FreedomWorks, and internet civil liberties groups
such as the Electronic Frontier Foundation and Demand Progress.
"At Adobe, we
believe customer private communications should receive full constitutional
protections," said Adobe spokesperson Lips. Other groups cite additional
consequences of leaving the ECPA unamended. The Chamber of Commerce, for
instance, worries about losing jobs to overseas competitors. "EU companies
are pitching customers, telling them they should store stuff in the EU because
they have stronger privacy protections than the United States," says Jason
Goldman, senior telecommunications policy counsel for the Chamber, in an
interview with Law Technology News. Meanwhile, Mason Clutter, national security
and privacy counsel at the National Association of Criminal Defense Lawyers
(link: http://www.nacdl.org), tells LTN that many of regulatory agencies have
criminal components to them, meaning they could share information easily.
"Regulatory agencies could obtain private information without a warrant
and then hand it over to their criminal law counterparts to be used in
prosecutions," says Clutter.
The amendment
passed by the Senate Judiciary Committee in April. A vote before the full
Senate has not yet been scheduled. On Wednesday, the House of Representatives
Appropriations Committee unanimously passed a similar amendment giving emails
the same protection as regular mail. "The IRS, SEC, and other government
agencies have stated Americans don't have an expectation of privacy with their
email,"
Victor Li is an LTN
staff reporter. Email: VLi@alm.com.
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