Electronic Communications Privacy Act of 1986 Needs Overhaul to Match New Technology

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Before e-mails. Before cloud servers. Before web hosting.

Before technology as it exists today.

That is when the Electronic Communications Privacy Act (ECPA) of 1986 was enacted.

As members of the Internet Infrastructure Coalition (i2Coalition), cPanel and SingleHop have long been involved in the fight to reform ECPA.

ECPA’s 28th anniversary is this week – Tuesday, October 21. For 28 years, as technology has advanced by leaps and bounds, this important piece of legislation that impacts our world as those that make up the Internet infrastructure community has gone unchanged.

Enacted in 1986, ECPA specified standards for law enforcement agencies to access electronic communications and data that went along with it. These standards provided privacy protections to those utilizing emerging wireless and Internet technology.

As the law stands, law enforcement can obtain emails that have been on a server for more than 180 days. While this may have seemed logical in 1986, with email services like Gmail and Yahoo people often keep emails for a much longer time.

Obviously, technology has advanced since 1986, and ECPA is in drastic need of significant revision.

The current ECPA law is inconsistent and threatens the enterprising nature of our industry. Cloud services are a $250 billion industry. Without updated privacy laws to provide online customers with the same legal protections they could get offline, we risk losing thousands of jobs — and our ability to compete in the global marketplace.

cPanel has facilities in Texas, New York and California. SingleHop serves more than 4,000 customers with data centers across the United States and Europe. Legislation such as ECPA has an impact on our ability to serve our customers, innovate and do business.

According to Cyberstates, the United States had 5.9 million tech workers in 2012, with over 67,400 net jobs added in the sector between 2011 and 2012. In 2012, the tech industry annualized payroll totaled $558 billion.

In a tough economy, these are real jobs that real people need. U.S. tech workers earned an average wage of $93,800 in 2012, 98 percent more than the average private sector wage of $47,400.

For US citizens and residents, the rules for the NSA are actually tighter than the rules for your local police department. To read your email or obtain your documents stored online, the NSA needs an order from a judge. Under ECPA, the local police, the DEA, and the IRS claim they don’t need a warrant. ECPA reform would fix that.

There is legislation in Congress to address ECPA’s shortfalls. In the House of Representatives, Kevin Yoder (R-KS), Sam Graves (R-GA) and Jared Polis (D-CO) introduced The Email Privacy Act (H.R. 1852). With 260 cosponsors from both sides of the aisle, it is a bipartisan bill with overwhelming support.

In the Senate, Senate Judiciary Committee Chairman Leahy (D-VT) and Mike Lee (R-UT) introduced a similar bill, the ECPA Amendments Act, which passed out of the Senate Judiciary Committee with bipartisan support. This legislation would require a warrant for government to access contents of Internet communications and the contents of documents stored in the cloud.

A warrant requirement will ensure the Constitutional right of due process guaranteed to all Americans and clarify muddled judicial procedures to make it easier for law enforcement officials to do their job effectively.

Law enforcement should be required to obtain a warrant before accessing private information that has been stored in the cloud for longer than 180 days.

Reforming ECPA has been a goal of the i2Coalition since its inception. As we reach ECPA’s 28th anniversary, we call on Congress to act on the bipartisan legislation that currently exists in both the House and Senate. ECPA has not been updated since 1986. Laws should keep up with advances in technology, not slow innovation down.

About the Authors:

Dan Ushman is Co-Founder and CMO at SingleHop. Aaron Phillips is Chief Business Officer at cPanel.



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