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DMA to Congress: Close Email Surveillance Loophole NOW!


Post Date: June 18, 2014
By: Rachel Thomas

Compromise is hard in general – and even more so in Congress. So, when a majority of the House of Representatives agrees on something, it’s a cause for celebration. Even more exciting: a majority of the House now supports a bill vital to protecting DMA members and their customers, donors, and vendors.

With urging from DMA and the rest of the Digital Due Process Coalition, efforts to reform the Electronic Communications Privacy Act (ECPA) have reached an important milestone: a whopping 218 members of the House – from both sides of the aisle – now support H.R. 1852, a bill that would create fundamental safeguards to protect consumer data.

In the House, 218 is a magic number, and H.R. 1852 is a game-changer. As we’ve said on the blog before, “ECPA reform” is short-hand for efforts to close a loophole that currently allows federal law enforcement to pilfer through any email, text, or document in a cloud older than 180 days old without a warrant. Put another way, ECPA reform would require that law enforcement have a “warrant for content” in every instance.

In fairness to its authors, ECPA was passed in 1986, when computing was a very different game.  If Ferris Bueller’s Day Off is anything to go by, data privacy in that year was pretty loose: Bueller hacked his high school attendance record mid-monologue. Compuserve was state-of-the-art and the idea of storing old emails was unheard of. Today’s world of cloud storage and mobile devices is beyond the imagination of lawmakers circa 1986 – and we are all paying the price.

The consequence of this outdated provision in an important law has been to strip Internet users of basic rights. This was recognized in 2010, when a federal circuit court called ECPA’s warrantless searches “unconstitutional.” This show of support has come at the opposition of many federal agencies – especially the Securities and Exchange Commission (SEC) – that use the current loophole to get around Fourth Amendment protections for physical evidence.

In a recent poll, 84% of Americans expressed a desire to reform ECPA. As one of DMA’s Five Fundamentals for the Future, ECPA reform is a top priority for DMA and its members. H.R. 1852 was introduced last year by Representatives Kevin Yoder (R-KS), Tom Graves (R-GA), and Jared Polis (D-CO). Slowly, DMA has pushed both sides of the aisle to support “warrant for content” reforms to ECPA. Today, 136 Democrats and 82 Republicans agreed with us.

The Yoder-Graves-Polis bill gives Congress the rare opportunity to guarantee the same amount of privacy to electronic communications as those offline. DMA urges House leadership to move expeditiously to pass H.R. 1852 out of the Committee and by the full House.

You too can help DMA ensure that ECPA reform gets passed by joining the Data Protection Alliance, DMA’s legislative coalition that focuses specifically on ensuring that effective regulation and legislation protects the value of the Data-Driven Marketing Economy far into the future.

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