Posted by Mary Catherine Wirth, Associate General Counsel, Cloud Services
In April 2013, the Senate Judiciary Committee voted to send the bipartisan bill sponsored by Senators Patrick Leahy (D-Vermont) and Michael Lee (R-Utah) and known as the Electronic Communications Privacy Act (ECPA) Amendments Act of 2013 (S. 607) to the full Senate. At that time, we applauded this important milestone towards protecting the privacy of information stored “in the cloud.” Unfortunately, despite widespread bipartisan and tech industry support, seventeen months later, S. 607 has not yet been brought to the Senate floor.
An identical bipartisan bill in the House sponsored by Representatives Kevin Yoder (R-Kansas) and Jared Polis (D-Colorado) and known as the “Email Privacy Act” (H.R. 1852) likewise remains stalled — even though it is co-sponsored by over 260 members of the House (and a majority of the house majority).
This is why Adobe and other members of the Digital Due Process Coalition this week sent letters to Senate Majority Leader Harry Reid and House Majority Leader Kevin McCarthy, urging them to bring S. 607 and HR. 1852 to the Senate and House floors. You can read those letters here and here.
Both bills share a common and very important goal: amending ECPA so that the government may only access communications stored online when a search warrant has been issued by a judge upon a showing of probable cause. The current version of ECPA was drafted in 1986, long before people stored so much of their personal information online, and gives Fourth Amendment protections only to some communications stored online and not to others. Right now, communications stored online for more than 180 days become available to law enforcement and civil investigative agencies with only a court order or a subpoena (which are much easier to obtain than a search warrant) on the theory that they have been “abandoned.” This may have made sense in 1986, but it does not make sense in 2014, when most of us store many years’ worth of private emails, photos and documents “in the cloud.”
At Adobe, we continue to believe that all of our customers’ private communications should receive full constitutional protections, regardless of whether they are stored at home, at work or in our cloud. This is why we hope to see the House and Senate take action on ECPA reform this year. We believe these bills would pass overwhelmingly, proving to Americans and the rest of the world that that the U.S. legal system values online privacy. ECPA reform is critical to consumer and business confidence in adopting cloud services, and we will continue to work to help ensure these bills are signed into law. More information, along with ways to show support for amending ECPA, is available on the Center for Democracy and Technology website.