Tick Tock: The Time for Electronic Privacy Reform is Now

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In 1986, Top Gun and Crocodile Dundee were packing movie theaters. Peter Gabriel and The Bangles were putting out hit music. Microsoft held its initial public offering of stock shares.

And 28 years ago this week — on October 21, 1986 the Electronic Communications Privacy Act of 1986 became law.

Long before emails and cloud servers, ECPA was written, and is still in place today without having been updated.

ECPA says authorities need only a subpoena, not a warrant, to look at private information stored in the cloud after the information has been accessible for 180 days. The law fails to ensure that certain forms of modern communication are granted the privacy protections guaranteed by the Constitution of the United States.

The law not only threatens our right to due process, but also the enterprising nature of the Internet infrastructure and the cloud computing industries, a business sector that generates $46 billion in annual direct and indirect revenue in the United States.

The Internet Infrastructure Coalition (i2Coalition) supports those who build the nuts and bolts of the Internet. We believe the continued growth of the Internet is vital for growing an environment of innovation globally and domestically. We have been pushing for overdue ECPA reform since our inception. The law as it stands is inconsistent and threatens the enterprising nature of the Internet and the cloud computing industry.

ECPA’s outdated language makes it difficult for companies such as those that make up i2Coalition to comply with its requirements, a consequence that dissuades international companies from taking advantage of the United States’ cloud computer resources. By establishing a clear and consistent policy, lawmakers will better position American Internet companies to compete in the global marketplace.

According to Cyberstates, the United States had 5.9 million tech workers in 2012, with over 67,400 net jobs added in the sector between 2011 and 2012. The software services sector itself added 63,900 jobs in 2012, a 3.5 percent increase. In that same year, the tech industry annualized payroll totaled $558 billion.

In a tough economy, these are real jobs that real people need. U.S. tech workers earned anaverage wage of $93,800 in 2012, 98 percent more than the average private sector wage of $47,400.

ECPA does not need to stay mired in language that addressed technology in 1986. There is legislation in Congress that has a broad range of support from both sides of the aisle.

The Email Privacy Act (H.R. 1852) was introduced in the House by Representatives Kevin Yoder, R-Kan., Sam Graves, R-Mo., and Jared Polis, D-Colo. It is a bipartisan bill, with 260 cosponsors from both sides of the aisle. It is the same bill as the ECPA Amendments Act introduced in the Senate by Chairman Patrick J. Leahy, D-Vt., and Sen. Mike Lee, R-Utah, which passed out of the Senate Judiciary Committee with bipartisan support. This legislation would require a warrant for government to access contents of Internet communications and the contents of documents stored in the cloud.

The Email Privacy Act would address many of the issues that U.S. companies face with ECPA. This legislation would help them continue to improve innovation while removing potential roadblocks to global competition.

The current ECPA law has not been updated since 1986, and technology has advanced leaps and bounds since that time. The law as it stands is inconsistent and threatens the enterprising nature of the Internet and the cloud computing industry. As we hit the milestone of the 28th anniversary of ECPA’s enactment, it is time for Congress to act to bring this legislation into this century, and help U.S. companies continue to excel in an Internet economy.

Written by: David Snead


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