Tech, Business Groups to Congress: Don’t Hit the ‘Delete’ Button on the Fourth Amendment
(This piece by Sheryll Poe originally ran on the U.S. Chamber of Commerce blog this week in honor of Constitution Day.)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.- U.S. Constitution Amendment IV
Who would have thought that 54 words penned by our Founding Fathers 227 years ago would be so pertinent in the digital age?
September 17 — Constitution Day — is about celebrating the foundation of our democracy. However, one of our current freedoms, storage and access to electronic data, is being threatened.
That’s why the U.S. Chamber along with 70 tech companies, civil liberties organizations, and business groups took out a full page add in Roll Call today urging Senate and House leadership to support HR 1852, the bipartisan Email Privacy Act, and Senate companion bill S. 607, the Electronic Communications Privacy Act Amendments Act of 2013. The bills aim to update the Electronic Communications Privacy Act (ECPA), which was passed in 1986 – well before the age of Twitter, Reddit and Dropbox (all signatories on Roll Call ad, by the way).
From the ad:
The bills would aid American companies seeking to innovate and compete globally. It would eliminate outdated discrepancies between the legal process for government access to data stored locally in one’s home or office and the process for the same data stored with third parties in the Internet “cloud.”
Consumers and businesses large and small are increasingly taking advantage of the efficiencies offered by web-based services. American companies have been leaders in this field. Yet ECPA, written in 1986, says that data stored in the cloud should be afforded less protection than data stored locally. Removing uncertainty about the standards for government access to data stored online will encourage consumers and companies, including those outside the U.S., to utilize these services.
The bills would not impede law enforcement. The U.S. Department of Justice already follows the warrant-for-content rule. The only resistance to reform comes from civil regulatory agencies that want an exception allowing them to obtain the content of customer documents and communications directly from third party service providers. That would expand government power; government regulators currently cannot compel service providers to disclose their customers’ communications. It would prejudice the innovative services that we want to support, creating one procedure for data stored locally and a different one for data stored in the cloud. For these reasons, we oppose a carve-out for regulatory agencies or other rules that would treat private data differently depending on the type of technology used to store it.
Updating ECPA would respond to the deeply held concerns of Americans about their privacy. S. 607 and H.R. 1852 would make it clear that the warrant standard of the U.S. Constitution applies to private digital information just as it applies to physical property.
The rights to privacy are just as important today as they were in George Washington’s day. Here’s hoping Congress is ready to show Americans and the rest of the world that the U.S. legal system values privacy in the digital age.