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July 27, 2017

For a Congress in Need of Resuscitation, Email Privacy May Be Just What the Doctor Ordered

 

For months Congress has been struggling to repeal\replace\fix\tweak Obamacare—actually, not so much Congress as the Republican caucus. Democrats have been sitting back watching in amusement as Republicans tripped all over themselves trying to keep their most significant campaign promise.

As underscored by Sen. John McCain’s plea for a return to cooperation and regular order, Congress seems more dysfunctional than ever. We recently recounted that not a single appropriations bill has been enacted on time since 2009, and the last time all 12 approps bills were enacted on time was 1996.

Here’s how long ago that was—in 1996, to get on the internet, most people had to log on to AOL via a dial-up modem, which is why in 1996 Americans spent 30 minutes per month on the internet.

No one understood back then how important life online would become—how much critical and personal data and information would be stored electronically on our devices, in the cloud, and on the servers of those with whom we interact electronically.

So one can hardly blame Congress for getting internet legislation wrong back then, since the world of ecommerce wasn’t well understood. Unfortunately, the federal law governing electronic privacy was written a full decade earlier, when there was even less understanding. In the Electronic Communications Privacy Act of 1986 (ECPA), Congress only extended basic Fourth Amendment privacy protections to data stored online for less than 180 days. Today, in retrospect, this seems astonishing and scary.

And it is. Any government agency can access any of your data that it wants to see, without a warrant, so long as it is more than 180 days old. That includes financial data, email, pictures and other media stored on servers all over the world and on your computer, tablet or cell phone. There is simply no justification for allowing such a gigantic breach in Americans’ Fourth Amendment privacy protections.

Congress understands the problem and supports the solution, which is why last year ECPA reform won rare, unanimous support in the House of Representatives. Disappointingly, the legislation was killed in the Senate by one senator who wrongly prioritized federal power over personal privacy. Now, in 2017, the Senate will get a do-over.

Today, Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) will introduce the ECPA Modernization Act of 2017, which addresses these problems and, for the first time in the digital era, extends analog privacy protections to your digital data. This no-brainer legislation should not only attract a large number of co-sponsors, but should also be brought to a vote as soon as possible.

For a Congress floundering on health care and in need of proof that its dysfunction is not terminal, fixing our data privacy could be just what the doctor ordered.


 

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