CalECPA Pushes Electronic Privacy Rights into Spotlight: Congressional Action Needed
Posted by Mary Catherine Wirth, Associate General Counsel, Director – Privacy, Trust & Safety
Californians took a major step forward on privacy rights today as Governor Jerry Brown signed the California Electronic Communications Privacy Act (CalECPA, SB 178). The bill protects information stored on smart phones, tablets, laptops, servers, and other digital devices from warrantless searches by law enforcement, while providing prudent exceptions for emergencies and public safety.
The bipartisan bill passed the state assembly on September 8, 2015 by a 56-11 vote. Backed by numerous technology companies, including Adobe, CalECPA requires law enforcement to meet the same standard – i.e., a warrant issued upon a showing of probable cause – for accessing a user’s information stored online as for documents or photos they store at home or at work. This commonsense reform protects the Fourth Amendment rights of Californians and should serve as a template for legislative action in Washington, D.C.
Adobe would like to thank the bill’s cosponsors Senators Mark Leno (D-San Francisco) and Joel Anderson (R-Alpine) for spearheading this effort. Their bipartisan efforts show how legislators can work across the aisle to help their constituents, protect constitutional rights, and solve problems.
While this represents real progress in the nation’s largest state, our country’s privacy laws remain stuck in a bygone era. Congress originally passed the Electronic Communications Privacy Act (ECPA) almost 30 years ago, long before most of us used email, the internet, or cloud storage. ECPA was a forward-looking law when it was passed back in 1986, but it included an outdated loophole that makes it easier for law enforcement entities to gain access to your email than a physical letter in your mailbox. For example, the law considers email older than 180 days to be “abandoned” and allows the government to gain access to those emails without a warrant.
Both the House and the Senate have introduced ECPA reform measures – in fact, the House has introduced two bills. Representatives Kevin Yoder (R-KS) and Jared Polis (D-CO) introduced the Email Privacy Act (H.R. 699), which currently has 300 co-sponsors, and Rep. Matt Salmon (R-AZ) introduced the Electronic Communications Privacy Act Amendments Act (H.R. 283) earlier this year. In the Senate, Senators Mike Lee (R-UT) and Patrick Leahy (D-VT) introduced a companion bill (S. 356) that is identical to the Salmon measure.
Hopefully, this action by California lawmakers will jumpstart a much needed debate in Washington on electronic privacy. Adobe will continue to work with its partners in the Digital Due Process Coalition to ensure lawmakers pass a comprehensive ECPA reform this Congress. Adobe believes that customer data stored online deserves the same protections as data stored at home or at work, and that full Fourth Amendment protections are essential to consumers trusting that their information is safe. Without trust, cloud computing can never realize its full potential.