Legislators tilt at the digital privacy windmill (again).

In the effort to preserve individual privacy in the digital age, hope springs eternal.

The latest endeavor to protect individuals’ privacy in the digital era is legislation introduced this week in the U.S. Senate that would require law enforcement and government authorities to obtain a warrant before accessing the digital communications of U.S. citizens.

Known as the ECPA Modernization Act of 2017, it is bipartisan legislation introduced by two senators known for being polar opposites on the political spectrum: Sen. Patrick Leahy (D-VT) on the left and Sen. Mike Lee (R-UT) on the right.

At present, only a subpoena is required for the government to gain full access to Americans’ e-mails that a over 180 days old. The new ECPA legislation would mean that access couldn’t be granted without showing probable cause, along with obtaining a judge’s signature.

The ECPA Modernization Act would also require a warrant for accessing geo-location data, while setting new limits on metadata collection. If the government did access cloud content without a warrant, the new legislation would make that data inadmissible in a court of law.

There’s no question that the original ECPA (Electronic Communications Privacy Act) legislation, enacted in 1986, is woefully out of date. After all, it stems from a time before the modern Internet.

It’s almost quaint to realize that the old ECPA legislation defines any e-mail older than 180 days as “abandoned” — and thereby accessible to government officials.  After all, we now live in an age when many residents keep the same e-mail address far longer than their home address.

The fact is, many individuals have come to rely on technology companies to store their e-mails, social media posts, blog posts, text messages, photos and other documents — and to do it for an indefinite period of time. It’s perceived as “safer” than keeping the information on a personal computer that might someday malfunction for any number of reasons.

Several important privacy advocacy groups are hailing the proposed legislation and urging its passage – among them the Center for Democracy & Technology and the Electronic Frontier Foundation.

Sophia Cope, an attorney at EFF, notes that the type of information individuals have entrusted to technology companies isn’t very secure at all. “Many users do not realize that an e-mail stored on a Google or Microsoft service has less protection than a letter sitting in a desk drawer at home,” Cope maintains.

“Users often can’t control how and when their whereabouts are being tracked by technology,” she adds.

The Senate legislation is also supported by the likes of Google, Amazon, Facebook and Twitter.

All of which makes it surprising that this type of legislation – different versions of which have been introduced in the U.S. Senate every year since 2013 – has had such trouble gaining traction.

The reasons for prior-year failure are many and varied – and quite revealing in terms of illuminating how crafting legislation is akin to sausage-making.  Which is to say, not very pretty.  But this year, the odds look more favorable than ever before.

Two questions remain on the table: First, will the legislation pass?  And second, will it really make a difference in terms of protecting the privacy of Americans?

Any readers with particular opinions are encouraged to weigh in.

2 thoughts on “Legislators tilt at the digital privacy windmill (again).

  1. Often, the name of a piece of legislation is quite the opposite of what it ends up doing. “The devil is in the details.”

    This time, I’m optimistic because it is being supported by Mike Lee, a courageous constitutionalist, and the Electronic Frontier Foundation, an organization that has been at the forefront of fighting for electronic liberty and privacy.

    In the past, proposed legislation has not passed because it limits government — and the big-government types are in both parties.

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