Online:
Visits:
Stories:

By The News Doctors
Contributor profile | More stories

Story Views
Now:
Last Hour:
Last 24 Hours:
Total:

Yahoo, tech companies are calling for an update to this privacy law

Sunday, December 6, 2015 12:20

% of readers think this story is Fact. Add your two cents.

(Before It's News)

TND Guest Contributor: Josh Peterson |

WASHINGTON, D.C. — Tech companies are continuing their call for an update to the nation’s email privacy law, which currently allows federal law enforcement to access without a warrant a person’s emails and text messages that have been stored online for longer than six months.

On Tuesday, the House Judiciary Committee heard from government and private sector experts as lawmakers further explored the debate over balancing the tension between digital privacy and physical security.

Technology companies have been urging lawmakers over the past several years to update the Electronic Communications Privacy Act of 1986 (ECPA). Crafted during a time indefinite online storage was not commonplace among consumers, ECPA allows law enforcement to collect without a warrant a suspect’s electronic messages stored for longer than 180 days.

“ECPA needs to reflect the digital times in which we live by requiring law enforcement officials to obtain a warrant before accessing stored digital communications, such as Yahoo Mail messages and Flickr photos and videos,” said Nicole Mortier, Yahoo’s director of federal government affairs, on the company’s policy blog on Tuesday.

“We urge the House to pass ECPA reform swiftly to ensure that our users’ privacy is protected in the digital age,” said Mortier.

Updating the nation’s privacy laws has, however, been anything but swift. The Securities and Exchange Commission has been a central opponent of reform in this area for several years.

As I reported for The Daily Caller in July 2013, and then again in 2014 forWatchdog.org, the Securities and Exchange Commission sought special treatment from Congress, seeking an exemption for its ability to collect email communications without a warrant.

While the agency does not have the authority to obtain search warrants for its investigations, it does possess subpoena power, a tool it is unwilling to relinquish. Subpoena recipients face the threat of being brought to court by the SEC if they fail to comply.

The Washington Post reported in Aug. 2010 that the SEC granted its enforcement division permanent “power to issue formal orders of investigation, which allow for the serving of subpoenas” following the completion of a one year trial period where the division tested its new authority.

“Without such an order, subjects of SEC probes cannot be forced to testify under oath or furnish documents. Still, the agency conducts many probes on an informal basis, and companies routinely turn over information voluntarily,” wrote the Washington Post.

The agency said the delegation of authority to the enforcement division “increased efficiency” in the division’s investigations, and “continued effective communication and coordination” across the agency.

In Nov. 2013, according to a Reuters report, Republican SEC commissioner Michael Piwowar, worried that expressed doubts the commissioners could exercise “the appropriate level of oversight of the formal order process.”

According to the SEC data, the agency engaged in a record number of enforcement actions (755) in 2014 where it decided to bring the case before federal court or an SEC administrative law judge. The previous record was set in 2011 (735).

The agency’s aggressive posture was articulated in a Oct. 2010 speech SEC Chairwoman Mary Jo White gave at the Securities Enforcement Forum, likening it to the theory of “broken windows” policing, which focuses on enforcing against low-level crime and disorder prevent larger-scale crimes.

“The same theory can be applied to our securities markets – minor violations that are overlooked or ignored can feed bigger ones, and, perhaps more importantly, can foster a culture where laws are increasingly treated as toothless guidelines. And so, I believe it is important to pursue even the smallest infractions,” said White.

The SEC’s internal courts also have been widely criticized as mere kangaroo courts.

For example, whereas the SEC only won 69 percent of its cases in federal court between Oct. 2010-March 2015, according to a Wall Street Journal analysis of agency data, the agency won a staggering 90 percent of the cases brought before its own judges during that same time period. Since 2004, the SEC has won 80 percent of the cases brought before its own judges.

The complex infrastructure of the digital economy also has federal agencies scrambling to implement their own policies for pursuing so-called cyber crime, the SEC being among them. Reuters reported in June 2015 that the SEC was using its subpoena power to enter the cybersecurity game and track down computer hackers potentially involved in insider-trading.

In the future, the SEC hopes to subpoena the electronic records from suspects directly instead of going through the companies that store the emails and texts.

“It simply makes no sense that our homes, cars, and mailboxes are protected from unwarranted government searches but the government can sift through our email inboxes with impunity,“ said Colorado Democratic Rep. Jared Polis in a statement following Tuesday’s hearing.

Polis and Rep. Kevin Yoder (R-KS) are lead co-sponsors of the Email Privacy Act, introduced in February, which aims to close the loopholes law enforcement exploits in ECPA; over 300 members of the House support the bill.

Gary Shapiro, president and CEO of the Consumer Technology Association (CTA), the 2,200 member consumer technology industry trade association, said, “Consumers should be able to trust that their personal data is legally protected, whether it’s stored or transmitted online or in their possession.”

“With 304 co-sponsors, the Email Privacy Act has the support it needs to be brought to the floor,” said Shapiro.

While the fervor surrounding former National Security Agency contractor Edward Snowden’s surveillance leaks certainly drew increased public attention toward electronic privacy issues, the charge for reform was led by major U.S. tech companies looking to protect their reputations and bottom lines from the overseas fall out.

The Islamic State’s recent strike in Paris has only served to embolden top law enforcement and intelligence officials in their quest for greater legal electronic surveillance capabilities to target criminals and terrorists.

Law enforcement and intelligence officials maintain that stricter privacy laws and encryption technologies make it harder to protect the public.

According to a recent Politico report, AT&T CEO Randall Stephenson told employees of the importance for balance in the debate over privacy and security, stating in a letter sent during the Thanksgiving week that policymakers, “not individual companies, to determine that balance.”

With Congress slow to act on reforming the nation’s privacy laws, state lawmakers have not shied away from engaging in the debate over the past several years as well.

In California, for example, California Democratic Gov. Jerry Brown signed into law in September the state’s own Electronic Communications Privacy Act, which, accordingto a Wired report, “bars any state law enforcement agency or other investigative entity from compelling a business to turn over any metadata or digital communications—including emails, texts, documents stored in the cloud—without a warrant.”

“It also requires a warrant to track the location of electronic devices like mobile phones, or to search them,” said the tech news site, calling the law “the nation’s best digital privacy law.”

But California is just one of many states fighting the battle across the nation. States are also working to rein in law enforcement agencies’ use of warrantless cell phone tracking with technologies that mimic cell phone towers, such as the Stingray device, according to a May 2015 Watchdog.org report.

And in 2014, Watchdog.org reported that electronic privacy battles were taking place in 20 states.

Missouri, for example, became the first state to enshrine electronic privacy into its state constitution, requiring law enforcement agencies to obtain a warrant before seeking out a suspect’s digital communications.

# # # #

Josh Peterson is a DC-based tech reporter for the Franklin Center’s Watchdog.org news site. Peterson previously spent two years at The Daily Caller covering tech and telecom regulatory policy as the publication’s Tech Editor. During that time, he focused on cybersecurity, privacy, civil liberties, and intellectual property issues, and in addition to covering political protest movements. Prior to joining The Daily Caller in October 2011, Peterson spent time in DC researching and reporting on technology issues in internship roles with Hillsdale College’s Kirby Center, Broadband Breakfast and The National Journalism Center, and The Heritage Foundation. Peterson has a B.A. in Religion and Philosophy from Hillsdale College. He is also a musician and music enthusiast, and an avid martial artist. Follow Josh on Twitter

Watchdog.org is an online news organization that publishes articles by independent journalists covering state-specific and local government activity. The program began in September 2009, a project of Franklin Center for Government & Public Integrity, a 501(c)3 non-profit organization dedicated to promoting new media journalism. This article is reprinted with permission.