The Electronic Communications Privacy Act (ECPA) is ridiculously outdated. It was passed in 1986, and to this day provides the (incredibly inconsistent and difficult to apply) rules for what sort of privacy electronic communications have, even though the technology has changed drastically. This has created some wacky consequences, including that (for example) emails have different privacy protections when an email is being written compared to when it’s being sent compared to when it’s been received compared to when it’s been read compared to when it’s been archived. As an example, since most messages did not stay on servers for very long (they were downloaded and deleted), the law decided that messages stored on a server for more than 180 days were considered “abandoned” and subject to even lower standards of privacy protections. Think about that the next time you open your Gmail account… ECPA has lots of problems, but the basics are this: it certainly didn’t anticipate an era where most of the things we do were in the so-called “cloud,” and it takes almost no account of the expectation of privacy.
Last year, Senator Pat Leahy introduced an ECPA reform bill that was mostly good. It basically said that if the government wants to get access to your data on a server, it first needs to obtain a warrant — something that is sorely missing today. There were some loopholes that concerned us, but for the most part, it was a very big improvement. And it went nowhere. Now, many folks around here will remember Senator Leahy for being the driving force in the Senate behind PIPA — and you may be quick to want to dismiss his actions here. But just because he’s (strongly) supported that bad bill, it doesn’t mean that everything he introduces has been similarly problematic.
Leahy is trying again to move forward with his ECPA reform plan, this time attaching it to an update of the Video Privacy Protection Act (VPPA). We’ve discussed the VPPA before. The short version is that it was a special law that bars the release of video rental info, passed in response to Supreme Court nominee Robert Bork having his video rental history leaked. But, of course, in this modern age where people automatically stream their music playlists or book purchases to Facebook… Netflix is left out in the cold, because the VPPA doesn’t allow them to do the very same thing. So, there’s an update to the VPPA making the rounds that basically changes the law to let you tell the world what you streamed from Netflix last night (if you so choose to share that kind of info).
That bill has a chance to actually go somewhere, and it looks like Leahy sees it as another chance to see if he can get his ECPA reform package through the Senate. While it’s no secret that I’ve had my differences with various Leahy proposals in the past, this is a reform that is badly needed to protect our privacy from government intrusion. Requiring a warrant to access your info in the cloud is a common sense move that’s long overdue. Read more