With cloud online privacy uncertain
By Cong. Ted Poe
Texas Insider Report: WASHINGTON D.C. Back in 1986 lawmakers believed they could protect the privacy of Americans by restricting
governments authority to read their email without a search warrant to content older than 180 days. My times have changed. Today
our right to privacy has been curtailed by a law written for a time that exists only in memory For technology that seems as outdated to us as the telegraph.
- The government cant tap our phones without a search warrant.
- The government cant read our mail without a warrant or enter our homes or search records that we keep in file cabinets.
- But ECPA the Electronic Communications Privacy Act authorizes the government to read emails and social media messages or any property we store in the cloud" without a warrant and without evidence that we are engaged in criminal behavior.
Thats an unnecessary invasion of privacy that reduces every Americans freedom. Why should the law treat digital data stored in the cloud" any differently than papers stored in a file cabinet in our home? It doesnt make any sense.
ECPA the Electronic Communications Privacy Act was passed in 1986 27 years ago which is a virtual eternity in todays Internet age. Despite its modern-sounding name ECPA predates the World Wide Web.
It was written when few people owned home computers. Even fewer communicated by email. Those who did rarely kept old ones. They couldnt imagine why or how anyone would store email that long. Email service providers offered limited storage capacity.
No one knew what the cloud" was or even anticipated that it could exist.
A generation can seem like a century in todays Internet age. Constant innovation is transforming the way we work learn communicate even relax. But today advances in technology are essential to our global competitiveness and economic growth.
Change usually brings challenge and at times our laws must adapt to reap the benefits of innovation without abridging our civil liberties a challenge our government has been reluctant to accept.
The world of 1986 is gone and it has been replaced by a world with free unlimited email storage high-speed broadband and cloud computing. In todays world we keep many of our most personal possessions online indefinitely:
- Sensitive Communications
- Financial Records
- Business Plans
- Family Photographs
- Schoolwork
- Personal Calendars even
- Weekend Shopping Lists
The way we communicate electronically has changed but the law related to its privacy has not.
ECPA currently allows government agencies to demand from service providers any email any documents anything at all that weve stored online for longer than 180 days. Big government can call on a private company to turn over your information if its been stored online for more than six months.
This circumvents the 4th Amendments prohibition against unreasonable Searches & Seizures" of Americans persons houses papers and personal effects" except when there is probable cause to believe a crime is being committed and a
judge has issued a search warrant.
Cloud-based services have become indispensable to the success of Texas and U.S. businesses especially small businesses and startup companies. The global cloud market is expected to reach a value of more than $240 billion by the next decade. American companies invented cloud computing and we should dominate the global market. The worst thing that we could do to our competitiveness is to hold American companies back with outdated laws. But thats whats happening right now.
The governments unrestricted authority to demand production of private information stored in the cloud will kill cloud computing" by destroying confidence in U.S.-based services and driving businesses to other countries which have stronger privacy protections. Thats what the CEO of Data Foundry a Texas-based data services provider has warned.
Unless we act now we are approaching a time when other countries possess greater safeguards for personal privacy than those assured by the country founded on the ideals of universal liberty.
To avoid this prospect we must modernize our laws to respect our rights when applied to the modern realities of the digital world. Reps. Zoe Lofgren (D-Calif.) Suzan DelBene (D-Wash.) and I have introduced bipartisan legislation the
Online Communications & Geolocation Protection Act to do just that by revising an outdated ECPA to protect
Internet users from intrusive and unwarranted government surveillance.
H.R. 983 requires the government to show probable cause and obtain a search warrant to access electronic communications just as it would to tap someones telephone. The government would need a warrant to compel service providers to produce documents stored in the cloud and to intercept or demand disclosure of personal location information generated by our cellphone and other mobile devices over time.
Technology may change but the Constitution does not.
Weve written the legislation to be technology neutral so our privacy safeguards cant be weakened by future innovations. It will encourage the growth of cloud computing in Texas and across the U.S. and improve our competitiveness in world markets.
That would create and protect American jobs. Most important it reaffirms that while the pace of change in our world is ever accelerating our founding ideals and civil liberties will exist unabridged forever.
And thats just the way it is.
Congressman Ted Poe represents the 2nd Congressional District of Texas and serves on the House Judiciary Committee and the Foreign Affairs Committee as Chairman of the Subcommittee on Terrorism Nonproliferation & Trade. Prior to serving in Congress Poe served for 22 years as a Criminal Court Judge in Houston where he garnered national media attention for his innovative sentences dubbed Poetic Justice."
