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Time to Break the Logjam on ECPA Reform

No one can argue convincingly that the email, photos and documents we store electronically are any less important to our personal and professional lives than the ones we keep on paper. Yet they are still held to different standards: Authorities need a warrant to search an old-fashioned file cabinet, but not your hard drive or email account.

That’s because the law that governs access to digital records, the Electronic Communications Privacy Act, or ECPA, turns 28 years old this week. It was enacted in 1986 — well before anyone but a small handful of scientists and academics had ever used the Internet — and it is long overdue for reform. Addressing this issue is an important step in building public trust in the innovative technologies at the heart of the digital economy.

Lawmakers in both parties agree on this proposition and have coalesced around appropriate reform measures. In the Senate, Judiciary Chairman Patrick Leahy (D-Vt.) has partnered with Mike Lee (R-Utah) to introduce the ECPA Amendments Act (S. 607), a bill that would fix the law by requiring authorities to obtain warrants to access private electronic communications from service providers. A companion bill in the House (H.R. 1852) has attracted more than 270 co-sponsors, and a broad coalition of public-interest groups and industry voices also supports reform.

These efforts have stalled, however, because civil agencies, led by the Securities and Exchange Commission, have urged Congress to re-create the accident of history that gave them access digital records with only a subpoena.

It is time for Congress to break this logjam. So BSA, along with a diverse coalition of technology companies and civil society groups, wrote letters last month to House and Senate leaders calling for a vote on the pending legislation. The upcoming lame duck session will be their last opportunity in this Congress. This is an achievable bipartisan accomplishment that also would be very well worthwhile.

To stay relevant, laws must evolve with technological reality. ECPA is way behind the times. It must be updated for the 21st century.

Victoria Espinel

Author:

Victoria Espinel, President and CEO of BSA | The Software Alliance and President of Software.org: the BSA Foundation, is a respected authority on the intersection of technology innovation, global markets and public policy. She leads strategic efforts that help shape the technology landscape in 60 countries through work in BSA’s 10 global offices.

Prior to heading BSA | The Software Alliance, Espinel served for a decade in the White House, for both Republican and Democratic Administrations. Espinel advised President Obama on pivotal IP issues in her role as the first US Intellectual Property Enforcement Coordinator. She was the chief US trade negotiator on IP innovation as the nation’s first Assistant United States Trade Representative for Intellectual Property and Innovation. She has also served as a professor of international trade and intellectual property at the George Mason School of Law.

Espinel is a founding and ongoing co-sponsor of Girls Who Code’s Washington, DC, summer immersion program, which empowers young women to pursue careers in STEM fields. She speaks at conferences around the world to build visibility for the amazing things people can do with software, and encourages businesses, governments, and the public to support a policy environment that will enable even more software breakthroughs.

Espinel chairs the World Economic Forum’s Global Agenda Council on the Future of Software & Society and was appointed by President Obama to serve on the Advisory Committee on Trade Policy and Negotiations (ACTPN), the principal advisory group for the US government on international trade. She holds an LLM from the London School of Economics, a JD from Georgetown University Law School, and a BS in Foreign Service from Georgetown University’s School of Foreign Service.

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