Earlier today, the Senate Judiciary Committee voted to send the Electronic Communications Privacy Act (ECPA) Amendments Act of 2013 (S. 607) to the full Senate—an important milestone in advancing the privacy of communications stored “in the cloud.”
If law enforcement wants access to communications you have stored in a file cabinet in your home or in your office, the Fourth Amendment requires that they obtain a search warrant issued by a judge upon a showing of probable cause. But, under ECPA in its current form, some communications you store in a cloud service receive these same Fourth Amendment protections while others do not. If you leave communications stored online for more than 180 days, they become available to law enforcement with just a court order or a subpoena on the theory that you have “abandoned” them. Court orders and subpoenas are easier for law enforcement to obtain than a search warrant. This may have made sense in 1986, long before the wide-spread adoption of cloud-based email and storage solutions. It does not make sense today.
At Adobe, we believe our customers’ private communications should receive full constitutional protections, regardless of whether they are stored at home, at work or in our cloud. That’s why we have been pleased to support, along with the many other technology companies and organizations who are part of the Digital Due Process Coalition, the ECPA Amendments Act introduced by Senators Leahy and Lee. Section 3 of the Act would amend ECPA so that government access to any communications stored online is subject to a single, clear and constitutional legal standard: a search warrant issued upon probable cause. The Act also sets forth clear rules about when a cloud provider can (and cannot) tell its users about a government request for access to communications.
This legislation is critical to consumer and business confidence in adopting cloud services, and we will continue to work to help ensure it is signed into law. More information, along with ways to show support for amending ECPA, is available via the Center for Democracy and Technology website.