Tags: Congress | privacy | business | cyberattack

Congress Needs to Act on Privacy Protections for US Businesses

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Friday, 06 November 2015 02:31 PM Current | Bio | Archive

If data move at the speed of sound, the government's efforts to keep up with the pace of change are more akin to the pace of a tortoise.  Laws governing technology are out of date, antiquated and often damage Americans privacy rights while undermining competitiveness of our companies doing business abroad.  Case in point is the Electronic Communications and Privacy Act (ECPA), which threatens constitutional protections and American jobs and thanks, in part, to the executive branch's opposition as Congress appears to be stalling on efforts to fix it.

Written during the Reagan years and prior to anyone outside of the Pentagon knowing what the Internet was, the ECPA regulates government's access to private electronic communications.   Proving the old adage, "if you give an inch, they will take a mile," regulatory and criminal enforcement agencies in the bureaucracy are using outdated laws  law to snoop while avoiding judicial oversight. The end result will damage the reputation of American firms looking to do business abroad, while serving to damage the Constitution in the process.

As written, the ECPA allows law enforcement to obtain emails without a search warrant that have been on a server more than 180 days.  In the early 1990s, it was routine for email servers to delete remaining messages within a month or two given storage constraints. Today, hundreds of millions of messages are stored, backed up and remain on cloud computing systems for months, if not years, on servers located who knows where.  As most of these emails remain stored for more than six months, this provides government agencies like the Department of Justice, the Securities and Exchange Commission and even the Federal Trade Commission to seek access to emails without a warrant.

The ability to grab data without a judicial warrant has come to the fore in the case of an Irish citizen who stored information on a cloud computing system owned by an Irish company on servers stored in his country.  If the information in question were a written document, if the United States government wanted access to the information, it would need to file a motion with the Irish government who would then consider its implementation.  But the information the government wants to access is in electronic form, so they took a short-cut -- they subpoenaed Microsoft, the subsidiary owner and demanded they turn it over.  They rightfully refused until the government followed proper protocol. 

The issue is now working its way through the courts and in the Congress.  The actions of the government clearly put American companies at a competitive disadvantage with their foreign competitors.  Why would any foreigner use an American owned company, such as Apple, Microsoft, Dropbox or others to store their data if the U.S. government could claim immediate access to it at any time for any reason, without a court order?

To find a middle ground, Sen. Orrin Hatch (R-UT) and Tom Marino (R-PA) have introduced the Law Enforcement Access to Data stored Abroad Act better known as the LEADS Act.  With bipartisan support, the legislation updates the ECPA, forces the government to improve mutual legal assistance treaties (MLATs) with other countries and provides a legal framework for access to data.  Despite these efforts, the wheels of Congress grind slowly.  One would think that if the bill came to the floor for a vote, it would likely pass with huge numbers.

Technological change is incredibly speedy and ever involving, which is why some companies are already pursuing ways to safeguard our cars and trucks from cyber attacks. At a time when policies and laws need to be in tune with the ramifications of the changing technology landscape, we find the government once again falling behind if not trying to lead from the rear. Hopefully, Congress can move on this legislation this winter or early next spring to update existing law. Privacy is too important for Congress to slow walk an update in existing law.




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ChrisVersace
If data moves at the speed of sound, the government's efforts to keep up with the pace of change are more akin to the pace of a tortoise.
Congress, privacy, business, cyberattack
655
2015-31-06
Friday, 06 November 2015 02:31 PM
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