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EDUCAUSE Joins Letter in Support of the Electronic Communications Privacy Act Amendment

While the Cybersecurity Act (S. 3414) was defeated on August 2, 2012, there was a specific privacy amendment filed by Sen. Patrick Leahy (D-VT) of interest to the EDUCAUSE community.  Senate Amendment 2580, cited as the “Electronic Communications Privacy Act,” would provide privacy protections for email and other electronic communications — including requiring that the government obtain a search warrant based on probable cause in order to obtain email content.  “In the information age, stronger privacy protections are also needed to safeguard Americans’ personal information and private communications in cyberspace,” Sen. Leahy said after filing the amendment.                                                                                                                                                       The amendment addresses the Electronic Communications Privacy Act (ECPA), a law that Sen. Leahy wrote and guided through the Senate in 1986.  ECPA was a forward-looking statute when enacted.  However, technology has advanced dramatically since 1986, and ECPA has been outpaced.  Consequently, ECPA is a patchwork of confusing standards that have been interpreted inconsistently by the courts, creating uncertainty for service providers (including our campus networks), for law enforcement agencies, and for all who use mobile phones and the Internet. (See previous EDUCAUSE blogs on May 18, 2011 and October 14, 2011 for further background information.)

EDUCAUSE joined with the Association of Research Libraries, businesses, and other trade associations in a letter sent to Senate Majority Leader Reid and Minority Leader McConnell supporting the amendment.  Sen. Leahy’s amendment would make it clear that, except in emergencies, or under other existing exceptions, the government must use a warrant in order to compel a service provider to disclose the content of emails, texts, or other private material stored by the service provider on behalf of its users.  It would provide clarity and certainty to law enforcement agencies at all levels, to business and entrepreneurs, and to individuals who rely on online services to create, to communicate, and to store personal and proprietary data.

The amendment would also implement the first principle of the Digital Due Process (DDP) coalition of which EDUCAUSE is a member. The overarching goal of the DDP is to simplify, clarify, and unify the ECPA standards, providing stronger privacy protections for communications and associated data in response to changes in technology and new services and usage patterns, while preserving the legal tools necessary for government agencies to enforce the laws, respond to emergency circumstances and protect the public. The first principle of the DDP is:

“A governmental entity may require an entity covered by ECPA (a provider of wire or electronic communication service or a provider of remote computing service) to disclose communications that are not readily accessible to the public only with a search warrant issued based on a showing of probable cause, regardless of the age of the communications, the means or status of their storage or the provider’s access to or use of the communications in its normal business operations.”

Updating ECPA continues to be an important goal.  Just after the Cybersecurity Act was defeated in the Senate, Rep. John Conyers (D-MI) and Rep. Jerrold Nadler (D-NY) introduced the Electronic Communications Privacy Act Modernization Act of 2012 (Note: The bill has not yet been assigned a number).  The legislation will update ECPA to coincide with advances in technology and to clarify issues of electronic privacy.  The issue has gained new attention after Rep. Edward Markey (D-MA) last month released documents that showed law enforcement made 1.3 million requests for mobile phone records from wireless providers in 2011.  Prospects for passage of this legislation are unknown at this time.

EDUCAUSE will continue to monitor and report on this issue.

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