ECPA Victory In The House: What’s Next?

In a vote of 419-0 the House passed the Email Privacy Act (HR 699). The Email Privacy Act is a huge step in the right direction. This Act will bring the Electronic Communications Privacy Act – or ECPA – into the modern world. The i2Coalition has supported ECPA reform since our inception, and we heavily advocated on behalf of the bill that just passed. As noted in our press release, getting this far required an extraordinary amount of effort and coordination.

It is hard to overstate the importance of ECPA reform to Internet Infrastructure Providers. While the deficiencies in ECPA are well documented, two issues are troublesome for our members:

• ECPA significantly increases costs for Internet infrastructure providers by creating a complex set of rules for access to data. These rules do not reflect the current use of technology. This makes developing compliance plans difficult and increases the possibility that sensitive information will be disclosed.
• Warrantless access to data by U.S. law enforcement entities discourages the adoption of cloud technology.

As a result of our role in the middle of most Internet transactions, Internet infrastructure providers receive a significant number of requests from law enforcement for information about their customers. Most have compliance plans designed to ensure that they comply with the laws governing their businesses, their customer expectations, and their privacy policies. A law that requires us to distinguishes between email that has been on an server for more than 180 days, or is in the trash, is generally unworkable.

ECPA is also inconsistent with, and threatens the enterprising nature of, the Internet and the cloud computing industry. Cloud services are a $250 billion industry. Without updated privacy laws to provide online customers with the same legal protections they could get off-line, we risk losing thousands of jobs — and our ability to compete in the global marketplace. ECPA reform sends a strong message to the marketplace that Congress cares and understands that law enforcement access to data is one of the most important marketplace issues that our members face.

The next step for ECPA reform is the Senate. In the past the Senate has been a more hospitable venue for ECPA reform, and we’re hoping that it will be again. Like the House, Senate efforts to reform ECPA have been bipartisan – and quite high level – with efforts originating with Senators Leahy and Lee. We are cautiously optimistic that the unanimous support that this legislation received in the House will demonstrate to the Senate how important passage is.

Our efforts to secure passage of ECPA reform in the House were critical to its success. I am very grateful to all of our members who spent countless hours advocating in person and by mail. I’m also grateful to those who provided input to the policy committee on strategy and on our communications effort.  I will count on each of you to do the same in our effort to get this ECPA reform on the President’s desk.