California senator pushes electronic privacy protection

Congress has let the Electronic Communications Privacy Act languish for decades

Congressional gridlock has stalled action on electronic privacy rights, so a California senator is saying it's time for the states to take the lead in pushing privacy law into the 21st century.

State Senator Mark Leno (D-San Francisco) filed a bill this week that would raise the bar for snooping on the email of Californians by state government. The legislation requires that a warrant be obtained before law enforcement is permitted to peek at a person's electronic communication.

"No law enforcement agency could obtain someone's mail or letters that were delivered to their home without first securing a search warrant, but that same protection is surprisingly not extended to our digital life," Leno said in a statement.

"Both state and federal privacy laws have failed to keep up with the modern electronic age, and government agencies are frequently able to access sensitive and personal information, including email, without adequate oversight," he added.

Leno's measure, SB 467, has garnered support from the Electronic Frontier and the American Civil Liberties Union of California.

"With SB 467, the warrant requirement becomes the status quo for all electronic communication providers and all law enforcement agencies across the state," EFF Staff Attorney Hanni Fakhoury said in a statement.

Added ACLU Technology & Civil Liberty Policy Director Nicole Ozer, "SB 467 would ensure that content stored in the cloud receives the same level of protection as content stored on a laptop or in a desk drawer."

Electronic Privacy Act: Ongoing debate

While Leno was filing his legislation in California, Congress had a hearing on revising the Electronic Communications Privacy Act (ECPA), which turns 27 this October.

"ECPA reform must be undertaken so that despite the evolution of technology and its use in the world, the constitutional protections reinforced by ECPA will endure," House Judiciary Committee Chairman Bob Goodlatte (R-Virginia) said in his opening remarks at the hearing on Tuesday.

"In updating a law passed before the creation of the Internet, the modernization of ECPA needs to provide electronic communications with protection comparable to their more traditional counterparts and take into account the recent boom in new technologies like cloud computing, social networking sites and video streaming," he said. "That's why we will modernize the decades-old Electronic Communications Privacy Act to reflect our current digital economy while preserving constitutional protections."

A peculiar provision in the current ECPA is that email stored on a server more than 180 days has no privacy protections under the law--not something that makes a lot of sense in an era of cloud computing.

That absurdity was recognized at the hearing by the U.S. Department of Justice (DoJ).

"[T]here is no principled basis to treat email less than 180 days old differently than email more than 180 days old," Elana Tyrangiel, acting assistant attorney general in the DoJ's Office Of Legal Policy testified at the hearing before the Subcommittee On Crime, Terrorism, Homeland Security and Investigations.

Start over, Google expert says

Also appearing at the hearing Tuesday was Richard Salgado, director of Law Enforcement and Information Security at Google.

"The inconsistent, confusing, and uncertain standards that currently exist under ECPA illustrate how the law fails to preserve the reasonable privacy expectations of Americans today," he told the House panel.

He also argued that because the ECPA is so antiquated, it makes it difficult for judges and law enforcement personnel to apply the law in today's real world.

"By creating inconsistent privacy protection for users of cloud services and inefficient, confusing compliance hurdles for service providers, ECPA has created an unnecessary disincentive to move to a more efficient, more productive method of computing," he maintained.

"ECPA must be updated to help encourage the continued growth of the cloud and our economy," he added.

Whether Congress has the will to deal with the ECPA this time around remains to be seen. Reform efforts in 2011 and 2012 generated similar rhetoric, only to end up in the Congressional dustbin at the end of the legislative session.

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