After a long silence, the White House weighs in on online privacy rules that are decades out of date

 


In this Jan. 17, 2014, file photo, President Barack Obama talks about National Security Agency surveillance in Washington.  (AP Photo/Carolyn Kaster, File)

A statute allowing law enforcement to occasionally access e-mails without needing a warrant needs to be reformed, according to a report released Thursday by the White House on big data and privacy.

Under a law crafted in 1986 called the Electronic Communication Privacy Act, e-mail and other digital content--like, say, a Gmail archive-- stored online for more than six months or left unread can be requested by law enforcement by use of a subpoena rather than a probable cause warrant.

Civil liberties and privacy groups have long argued ECPA is outdated. These groups have joined major tech companies like Google and Microsoft in the Digital Due Process Coalition, which is urging Congress to take action on the issue. The courts have also debated whether e-mails should have Fourth Amendment protections -- with at least one federal appeals court saying yes in a 2010 case.

After months of silence on the issue, the White House weighed in Thursday. The report, prepared by a group led by former Clinton chief of staff John Podesta, recommended Congress "amend ECPA to ensure the standards of protection for online, digital content is consistent with that afforded in the physical world -- including by removing archaic distinctions between email left unread or over a certain age."

While the law worked well to protect user data in the past, the report says, "with time, some of the lines drawn by the statute have become outdated and no longer reflect ways in which we use technology today."

As Mark Stanley of the Center for Democracy and Technology put it: "Today’s report to the President embraces a very simple but crucial concept: Protections against government snooping should be the same for all private communications, whether online or off."

Proposals to update the statute have been floated in recent years with various levels of success, but have yet to become law. Despite a broad coalition supporting reform, granting full warrant protections to e-mail also has opponents, including the Securities and Exchange Commission, which has argued it would make investigations and enforcement more difficult. "Civil law enforcement agencies like the SEC aren't able to obtain the search warrants that the proposed legislation would require," SEC Enforcement Director Andrew Ceresney told Reuters in response to a letter from proponents of reform criticizing his agency's opposition to reform last month. "Preserving access to evidence through (Internet service providers) for the SEC and other civil law enforcement agencies is critical to protect the American public from wrongdoers."

Kevin Bankston, the Policy Director at New America Foundation's Open Technology Institute, praised the White House report for recommending ECPA reform and urged legislative action. "Especially now that the White House has joined the chorus of voices calling for strong electronic privacy reform, it's time for Congress to quit stalling and move forward on legislation to ensure that the police can’t secretly grab your private emails without probable cause," he said in a press release.

But Bankston also questioned if the report's timing may have been aimed at deflecting pressure from the ongoing debate about National Security Agency surveillance practices. Although he called the report a "helpful addition" to the larger consumer privacy debate, Bankston wondered if producing the report "was really the best way for the White House’s top tech policy minds to be spending the last three months" or "ultimately a distraction" from reforming the National Security Agency's massive surveillance program.

Alex Fowler, Mozilla's lead on global privacy and public policy, touched on the NSA issue in an e-mailed statement, saying "we strongly urge the Obama administration to stay focused on surveillance reform to help restore trust on the Internet."

There was only one mention in the report of Edward Snowden, the former NSA contractor who leaked documents leading to the exposure of the agency's spying practices: he was cited on a list of "troubling breaches and acts of violence by insiders who held security clearances" in recent years.

The group led by Podesta started working on the report at the behest of the president following a January speech announcing NSA reforms. In a call earlier today, Podesta defended the focus of the report, saying the group was asked to look at other sectors and that it was in "no way hypocritical” for the White House to tackle these issues after the NSA disclosures.

CORRECTION: The headline and a previous version of this post stated that the White House was finally noticing the need for reforming ECPA. In fact, the Obama administration has weighed in on the debate before, notably with U.S. Attorney General Eric Holder telling Congress in May of last year that the government should get a warrant before reading the e-mails of Americans.

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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