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Is It Time to Pop the Champagne for ECPA?

It generally isn’t a good idea to celebrate before a vote in Congress. But it also isn’t generally the case that the House is voting on a measure that is sponsored by nearly three-quarters of its Members. That is the situation this week, with a vote coming on the Email Privacy Act — a bill sponsored by a staggering 314 Representatives.

And those circumstances are why this time perhaps it’s worth celebrating — just a bit — this big step for privacy even before votes are cast.

It shouldn’t be surprising that so many have signed on in support of the Email Privacy Act. The bill makes a significant improvement in privacy protections for technology users. At its core, the legislation updates the Electronic Communications Privacy Act (ECPA) to ensure that law enforcement get a warrant in order to obtain the content of users’ email and other files that are stored online.

That change makes sense as more and more of our communications and files move from our desk drawers to our virtual cabinets in the cloud. In our homes, Americans have an expectation of privacy in their “papers and effects [ ] against unreasonable searches and seizures.” Yet, based on an arbitrary distinction written into a law that was drafted 1986 — at the dawn of the Internet Age — that expectation has not been guaranteed online. By eliminating that distinction, the Email Privacy Act will ensure digital files receive an appropriate level of protection.

So, even before the vote, there is much to celebrate about the progress made on ECPA reform this year. Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) deserve tremendous praise for driving the strong support for the bill. Building on their work, House Judiciary Committee Chairman Goodlatte should be applauded for driving a compromise proposal that the core goal of ECPA reform. Many of those involved in this debate also have pledged that they will continue to work to address other ECPA concerns. These include the rules around government access to location data and the pressing need to create a framework for law enforcement access to data held overseas.

The one thing putting a damper on this celebration? Uncertainty in the Senate. With the limited number of legislative days this year, it will be a challenge to finalize ECPA reform in the current Congress. That’s unfortunate, and the wide-ranging coalition of ECPA supporters will now turn their efforts to ensure Senate Judiciary Chairman Grassley hears the calls for further votes for privacy — and further celebrations.

Chris Hopfensperger

Author:

As the founding executive director of Software.org, Chris Hopfensperger will lead the foundation’s efforts to help policymakers and the general public better understand the impact that software has on our lives, our economy, and our society. He also will translate the foundation’s philanthropic and forward-looking agenda into efforts to address key issues facing the software industry.

Previously, Hopfensperger was a Senior Director, Global Policy at BSA | The Software Alliance. In that role he worked with BSA members to develop and advance the organization’s positions on technology law and regulation across markets. Hopfensperger conceived and helped produce a series of groundbreaking policy papers including the BSA Global Cloud Computing Scorecard, a tool for helping policymakers craft the right legal and regulatory environment for adopting the emerging technology. He advised members in such critical policy areas as cybersecurity, privacy, and encryption.

Hopfensperger has worked with industry representatives and government officials in numerous markets, and he has spoken on the intersection of policy and technology in several key capitals including Bangkok, Brussels, Beijing, Delhi, Seoul, and Tokyo.

Prior to joining BSA, Hopfensperger served as a technology and trade policy associate in the DC office of a large global law firm. While there, he advised companies and industry associations on pursuing legislation and representing their issues before Congress and the federal agencies and in the courts. Previously, Hopfensperger worked for more than a decade as a newspaper writer and editor, including at The Washington Post, The Sacramento Bee, and the St. Petersburg Times. Hopfensperger holds a law degree from the University of Michigan and a bachelor’s degree in journalism from the University of Nebraska.

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