Congress Might Actually Be Moving Forward On Fixing Outdated Email Privacy Law!

from the didn't-see-that-coming dept

Thu, Feb 4th 2016 3:31pm — Mike Masnick

We've been talking about and asking for ECPA reform for many, many years, and it might finally be moving forward. ECPA is the Electronic Communications Privacy Act, which details how the government can get access to your electronic communications. The law was written in the early 1980s, and as you've probably noticed, we live in a very different world these days as it pertains to electronic communications. One key example: the law says that messages left on a server for more than 180 days are considered abandoned and can be searched without a warrant. That may have made some sense (though, not really) in a client-server era, where everyone downloaded their messages leading to them being deleted from a server, but it makes no sense at all in an era of cloud computing.

The main foes against updating ECPA have been government agencies that have investigatory powers, but not the ability to get a warrant -- mainly the SEC and the IRS, with the SEC being the real stumbling block. The SEC really liked the fact that it could snoop through emails without a warrant. So, even with massive support in Congress, ECPA reform never went anywhere.

So it was a bit surprising to folks this week to see Rep. Bob Goodlatte announce that the Judiciary Committee will now markup the ECPA reform bill, meaning that the bill is moving forward again. It's not entirely clear why it's happening now, but at the very least, it sounds like the SEC's constant protests may no longer be an obstacle. Hopefully it does move forward, and whatever results from the process leads to much stronger privacy protections on electronic communications, such as actually requiring a warrant, like the 4th Amendment says should happen.

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Filed Under: bob goodlatte, ecpa, ecpa reform, electronic communications, email, irs, judiciary committee, markup, sec, surveillance

19 Comments

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Anonymous Coward, 4 Feb 2016 @ 4:09pm

Re: The SEC really liked the fact that it could snoop through emails
Interested in a reference to confirm that statement. Odd that having the power, and apparently the desire to do so, there haven't been any notable arrests of late.

Maybe it is like condiments. You don't really want it, but you expect them in the bag with your fries anyway.
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Anonymous Coward, 4 Feb 2016 @ 5:04pm

I can tell Mike is serious when he uses an exclamation mark.
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Anonymous Coward, 4 Feb 2016 @ 5:30pm

Maybe Wall Street Trail Covering
some people trying to be Presidential candidates, might have scared wall street into thinking there might be real investigation of financial practices. This is probably the reason for the weird pushing of ECPA & privacy considerations, Now. Its a shame the system is so corrupt that privacy reforms only happen when the Rich A-holes want to stop a "probe".
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UniKyrn, 4 Feb 2016 @ 5:35pm

Yeah, Right
If they've decided to re-visit that law, it's because they've found a way to make it worse.
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Whatever (profile), 4 Feb 2016 @ 5:47pm

I guess this is what they have been doing instead of discussing TTIP. At this pace, they should get to TTIP in about 2025 or so.
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Anonymous Coward, 5 Feb 2016 @ 12:30am

Re: Yeah, Right
by "They" you mean "a lobby group behind the congress" aight?
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Stephen, 5 Feb 2016 @ 1:07am

It May Soon Be More Outdated Than You Think
I've just been reading a new report in the Washington Post titled "The British want to come to America — with wiretap orders and search warrants" that would seem to be relevant here. It begins:
If U.S. and British negotiators have their way, MI5, the British domestic security service, could one day go directly to American companies like Facebook or Google with a wiretap order for the online chats of British suspects in a counterterrorism investigation.

The transatlantic allies have quietly begun negotiations this month on an agreement that would enable the British government to serve wiretap orders directly on U.S. communication firms for live intercepts in criminal and national security investigations involving its own citizens. Britian would also be able to serve orders to obtain stored data, such as emails.
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BentFranklin (profile), 5 Feb 2016 @ 5:59am

Clearly the reason it is moving forward is that it limits the SEC even further.

By the way, go see The Big Short.
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Anonymous Coward, 5 Feb 2016 @ 6:51am

The only reason they do this is so they can attach other laws to it and clearly remove any resistance or legal defense or argument that has been used in the past, and also create more concrete definitions and exclusions .
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Almost Anonymous (profile), 5 Feb 2016 @ 7:28am

Re: Yeah, Right
Yep, my thoughts exactly. Instead of 180 days, email will be considered "abandoned" after 24 hours.
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Almost Anonymous (profile), 5 Feb 2016 @ 7:29am

Re:
The later (up to and including never), the better.
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Wendy Cockcroft, 5 Feb 2016 @ 7:36am

Re: Re:
Ah, but I don't think they're planning to discuss the execrable TTIP. I'm actually expecting them to shove it through as part of a farming bill, or something.
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John Mitchell (profile), 5 Feb 2016 @ 8:37am

It's all about "effects"
To presume abandonment of server email after 180 days is like presuming abandonment of the contents of your safety deposit box (or your savings account) after 180 days.

The Fourth Amendment covers not just our persons, houses and papers, but our "effects" too. There is no cloud - it's just another computer hard drive where I keep my effects.

Just as the 4th says "houses" and not "homes," my "effects" need not be limited to what I download from the server; they include what I house somewhere else.
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Coyne Tibbets (profile), 5 Feb 2016 @ 2:14pm

Cynic in me
My cynical nature tells me that any new version of this law will eliminate all email privacy.
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tqk (profile), 5 Feb 2016 @ 4:03pm

It's not entirely clear why it's happening now, but at the very least, it sounds like the SEC's constant protests may no longer be an obstacle.

What, the egregious overreach of the surveillance state is starting to make even institutional investors nervous? I'd take that as a definite win for all of us yammering about this on the net. We finally raised the temperature and got through to them, forcing them to accept there's something funny going on that they need to care about.

Supertankers don't turn quickly, but they can still turn. That's a happy Friday news story.
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tqk (profile), 5 Feb 2016 @ 4:41pm

Re: Re: The SEC really liked the fact that it could snoop through emails
Interested in a reference to confirm that statement. Odd that having the power, and apparently the desire to do so, there haven't been any notable arrests of late.

It's anecdotal. I've read many articles here mentioning it. I'm sure if you searched through them, at least one would mention, or allude to, where it came from.

As for arrests, it's just like lawsuits. Agree to pay the fine/judgment, and the lawsuit (or charges) will disappear, with no judgment entered into the books. No precedent to go from either. Handy that. All parties involved happily agree to bury the controversy quietly.

Sucks to be the poor slob that runs into the same wall next time.
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tqk (profile), 5 Feb 2016 @ 4:49pm

Re:
I can tell Mike is serious when he uses an exclamation mark.

Mike is very often a writer in a hurry. He's a busy guy watching lots of stuff that I can't be arsed to keep up with. I appreciate his energy and enthusiasm, especially when he gets enthused about stuff that I couldn't be bothered to track and which bore me to death.

Specialists vs. generalists. We all contribute in our own ways.
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tqk (profile), 5 Feb 2016 @ 5:08pm

Re: It's all about "effects"
To presume abandonment of server email after 180 days is like presuming abandonment of the contents of your safety deposit box (or your savings account) after 180 days.

Consider IMAP or GMail (cloud computing). The whole point is to leave it on a server, because you want it left there. This law abuses modern practices egregiously by being stupid about it. It's been wrong for decades, and tenaciously avoiding learning the truth of what's actually happening in reality.
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The Wanderer (profile), 26 Feb 2016 @ 3:11pm

Re: It's all about "effects"
To presume abandonment of server email after 180 days is like presuming abandonment of the contents of your safety deposit box (or your savings account) after 180 days.
That's surprisingly close to what was almost certainly the original analogy.

I strongly suspect that the original comparison was to, not a safety-deposit box, but a post-office box. The mechanics are much the same; mail comes in, it's put in the box, and from time to time the recipient comes and takes it out, to read and process as desired. If the mail is left in the box without being taken out for long enough, it's considered abandoned, and can be examined under the right circumstances. As long as the analogy holds, this treatment seems reasonable.

By contrast, in a modern E-mail system, you often no longer take mail out of the box; instead, you read it, sort it, and leave it there in case you want it later. The original analogy to a post-office box has broken down, and it is no longer reasonable to apply the same rules.

Unfortunately, since the entrenched interests benefit from applying the same old rules in this new situation where they no longer make sense, getting the rules updated to reflect the changes since the days of the original analogy has proved to be fairly difficult.
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