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How the Cloud Is Spurring Reform of Federal Law

by on October 25, 2010

An article came out late last month from Information Week that stated that the federal government was seeking the Internet wiretap powers. The federal government defended their action by saying they didn’t actually want to extend their powers, but just have laws that already exist (e.g., wiretapping) to keep pace with new technologies. In essence, the feds want to have the powers granted to them in the Communications Assistance to Law Enforcement Act of 1994 to extend to the Internet.

Online_privacy Traditionally, the federal government has been extremely slow changing these types of laws to keep pace with new technologies.

In fact, a group calling itself the Digital Due Process coalition, which includes AOL, ACLU, Library Association of America, AT&T, eBay, Intel, GoogleMicrosoft and others, expressed their concerns in March of this year about, what they considered to be the outdated federal Electronic Communications Privacy Act (ECPA), which was originally passed in 1986.

Since that time, the coalition points out, much has changed in the technosphere. Email has become ubiquitous, and its lifespan, thanks to online storage, has become much longer. Location information about individuals is readily available from mobile device. More and more information is being stored in the cloud by consumers and businesses. And social networks are being used by millions of people and increasingly being used as a substitute for private communication.

By failing to accommodate those changes, the existing law has created confusion and endangered the privacy of both business and consumer information. For example, electronic documents stored locally are subject to the warrant requirements of the Fourth Amendment of the U.S. Constitution, yet those stored in the cloud are not. Email is subjected to multiple standards depending on its location during its lifecycle. And in the last five years, there have been 30 federal decisions on location information with varying opinions.

Despite the current law’s deficiencies, the coalition doesn’t want to scrap it. “Rather than attempt a full rewrite of ECPA, which might have unintended consequences,” it notes at its Web site, “we focused on just a handful of the most important issues—those that are arising daily under the current law: access to email and other private communications stored in the cloud, access to location information, and the use of subpoenas to obtain transactional data.”

Changes to the law recommended by the group include requiring all information types should be treated equally regardless of how they’re created, communicated or stored; information should be treated the same in transit as it is in storage; and all communication content should protected by court order based on probable cause regardless of its age or “opened” state.

It also advocated that the building blocks of criminal investigation in the law be preserved—subpoenas, court orders, pen register orders, tap and trace orders and warrants—and that exceptions written into the law since its enactment be preserved, such as disclosure of information to the government without court order in emergency cases.

But I’d like to know what you think. Do you think these electronic privacy laws need to be changed? Is the government overreaching with some of its requests? Should the same rights they have currently be applied to the Internet and conversely, should the same privacy right you have under current law also be applicable to the Web and other electronic devices?

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