Keeping ‘cloud’ private: House advances tougher privacy act

The FBI’s battle with Apple to “crack” a terrorist’s iPhone has helped raise public awareness of government intrusion into even the most secure private data. The Senate is discussing a ban on unbreakable encryption. But Wednesday the House moved closer to protecting our data with changes to the Electronic Communications Privacy Act that will end the government’s ability to obtain information without a warrant after 180 days. Many tech firms had endorsed the revision.

Interestingly, Apple was not among the signatories of a letter sent to the House seeking support of the ECPA changes that already have received bi-partisan support.

Here’s the AP report on the House bill:

House panel’s bill strengthens privacy for older emails

WASHINGTON – The House Judiciary Committee has approved a bipartisan bill making it harder for government agencies to get their hands on Americans’ older emails and other electronic data.

The legislation would require federal agencies to obtain a warrant before they can force an email service provider, such as Google, to give them access to communications data that is more than 180 days old. Stored videos and text messages would also be covered.

The measure updates a 30-year-old law under which old emails are considered abandoned and allows government access without a warrant.

The committee is often divided along party lines. But the bill has over 300 co-sponsors and the panel approved it Wednesday by 28-0.

The measure’s two chief sponsors are Kansas Republican Kevin Yoder and Colorado Democrat Jared Polis.

The AP earlier reported the following on the Senate’s encryption bill, which was unveiled also on Wednesday:

“A draft version of a Senate bill would effectively prohibit unbreakable encryption and require companies to help the government access data on a computer or mobile device with a warrant.

“The draft is being finalized by the chairman of the Senate Intelligence Committee, Sen. Richard Burr, R-N.C., and the top Democrat, Sen. Dianne Feinstein of California.”

The ECPA revisions

The warrant issue is addressed in the House’s HR 699, known as the Manager’s Substitute Amendment to the Email Privacy Act.

“As amended, the Act updates the Electronic Communications Privacy Act (ECPA), the law that sets standards for government access to private internet communications, to reflect internet users’ reasonable expectations of privacy with respect to emails, texts, notes, photos, and other sensitive information stored in ‘the cloud,’ the letter reads.

Signatories include Microsoft, Facebook, Twitter, Yahoo and others. (See edited list below for the list of tech firms and groups included in the letter endorsements.)

According to the group letter, the changes would “end ECPA’s arbitrary ‘180-day rule,’ which permits email communications to be obtained without a warrant after 180 days. The Act would also reject the Department of Justice interpretation of ECPA that the act of opening an email removes it from warrant protection. These reforms would ratify the Sixth Circuit’s decision in U.S. v. Warshak, which held that email content is protected by the Fourth Amendment and that law enforcement access requires a probable cause warrant. Moreover, the changes reflect current practices: DOJ and FBI policies already require law enforcement officials seeking content to obtain a search warrant, and many service providers will not relinquish their users’ content without one.”

The group wanted even more changes.

[I]t “does not achieve all of the reforms we had hoped for. Indeed, it removes key provisions of the proposed bill, such as the section requiring notice from the government to the customer when a warrant is served, which are necessary to protect users,” they wrote.

“However, it does impose a warrant-for-content rule with limited exceptions. We are particularly pleased that the Manager’s Substitute does not carve out civil agencies from the warrant requirement, which would have expanded government surveillance power and undermined the very purpose of the bill.”

Berin Szoka, president of TechFreedom, a non-partisan technology think tank, also supports the changes.

“That’s one small step for privacy, one giant leap for the House Judiciary Committee,” he said. “Today’s reform means catching up, just barely, with the Internet of 2004 — the year when Gmail launched and ordinary Americans began storing their most personal communications in the ‘cloud.’ And it only took six years of the most sustained, bipartisan reform campaign the tech community has ever mounted! Now that the ball is finally rolling, expect a quick vote on the House floor and about the closest thing you’ll ever get to unanimity in that fractious chamber.”

Signatories

The signatories of the letter include: