A generation can seem like a century in the Internet age. Constant innovation is transforming the way we work, learn, communicate and even relax. Advances in technology are essential to our global competitiveness and economic growth. Change usually brings challenge, and at times, our laws must adapt to reap the benefits of innovation without abridging our civil liberties, a challenge our government has been reluctant to accept.
The Electronic Communications Privacy Act was passed in 1986, 27 years ago, a virtual eternity in the Internet age. Despite its modern-sounding name, ECPA predates the World Wide Web. It was written when few people owned home computers and even fewer communicated by email. Those who did rarely kept their old emails. Hard drives were small and expensive. Email service providers offered limited storage capacity. No one knew what the “cloud” was or even anticipated that it could exist.
Back then, lawmakers believed they could protect the privacy of Americans by restricting government’s authority to read their email without a search warrant to content older than 180 days. They couldn’t imagine why or how anyone would store email that long. My, times have changed.
The world of 1986 is gone, and it has been replaced by a world with free, unlimited email storage, high-speed broadband and cloud computing. In today’s world, we keep many of our most personal possessions online indefinitely: family photographs, schoolwork, sensitive communications, financial records, business plans, personal calendars and even weekend shopping lists.
The way we communicate electronically has changed, but the law related to its privacy has not. ECPA allows government agencies to demand from service providers any email, any documents, anything at all that we’ve stored online for longer than 180 days. Big government can call on a private company to turn over your information if it’s been stored online for more than six months. This circumvents the Fourth Amendment’s prohibition against “unreasonable searches and seizures” of Americans’ “persons, houses, papers and personal effects,” except when there is probable cause to believe a crime is being committed and a judge has issued a search warrant. Our right to privacy has been curtailed by a law written for a time that exists only in memory, For technology, that seems as outdated to us as the telegraph.
The government can’t tap our phones without a search warrant. It can’t read our mail without a warrant or enter our homes, or search records that we keep in file cabinets. But ECPA authorizes the government to read emails and social media messages or any property we store in the “cloud” without a warrant and without evidence that we are engaged in criminal behavior. That’s an unnecessary invasion of privacy that reduces every American’s freedom. Why should the law treat digital data stored in the “cloud” any differently than papers stored in a file cabinet in our home? It doesn’t make any sense.
Cloud-based services have become indispensable to the success of Texas and U.S. businesses, especially small businesses and startup companies. The global cloud market is expected to reach a value of more than $240 billion by the next decade. American companies invented cloud computing, and we should dominate the global market. The worst thing that we could do to our competitiveness is to hold American companies back with outdated laws. But that’s what’s happening right now.
The government’s unrestricted authority to demand production of private information stored in the cloud “will kill cloud computing” by destroying confidence in U.S.-based services and driving businesses to other countries, which have stronger privacy protections. That’s what the CEO of Data Foundry, a Texas-based data services provider has warned. Unless we act now, we are approaching a time when other countries possess greater safeguards for personal privacy than those assured by the country founded on the ideals of universal liberty.
To avoid this prospect, we must modernize our laws to respect our rights when applied to the modern realities of the digital world. Reps. Zoe Lofgren (D-Calif.), Suzan DelBene (D-Wash.) and I have introduced bipartisan legislation, the Online Communications and Geolocation Protection Act, to do just that by revising an outdated ECPA to protect Internet users from intrusive and unwarranted government surveillance.
H.R. 983 requires the government to show probable cause and obtain a search warrant to access electronic communications just as it would to tap someone’s telephone. The government would need a warrant to compel service providers to produce documents stored in the cloud and to intercept or demand disclosure of personal location information generated by our cellphone and other mobile devices over time.
Technology may change, but the Constitution does not. We’ve written the legislation to be technology neutral so our privacy safeguards can’t be weakened by future innovations. It will encourage the growth of cloud computing in Texas and across the U.S. — and improve our competitiveness in world markets. That would create and protect American jobs. Most important, it reaffirms that while the pace of change in our world is ever accelerating, our founding ideals and civil liberties will exist unabridged forever. And that’s just the way it is.