Innovation and the Internet move quickly. Over the past 10 years alone we have seen the development of new industries, which weren’t imaginable, let alone feasible 20 years ago. Uber, RetailMeNot, DropBox and Meerkat are each distinctly different and yet each are widely adopted applications only made possible by the massive growth of mobile communications and cloud based big data.
We all know that unfortunately Congress doesn’t move at Internet speed. The law that protects our right to private communications is also supposed to somehow protect our electronic data – but this isn’t the case.
Congress passed the Electronic Communications Privacy Act (ECPA) in 1986 to protect our right to private telephone calls. To place that in perspective, in 1986 ???disruptive technology??? was the latest IBM Selectric typewriter. 1986 was the same year Microsoft released Windows 1.0 and Apple celebrated the second anniversary of the original Macintosh.
Incredibly, judges in the U.S. Court system have successfully stretched the ECPA to provide limited privacy for everything our mobile devices do now – the selfies on our phone or the future best-selling novel on our laptop. However, the U.S. Department of Justice (DOJ) has successfully pressured a U.S District Court Judge to establish a precedent that threatens to break this fragile protection – both within the U.S. and internationally. It is necessary for Congress to act to protect our increasingly electronic identities and to establish standards of conduct protecting U.S. citizens, our digital identities and innovative products and services we utilize for our convenience.
By forcing U.S. law into direct conflict with the privacy protections of the European Union, this action by DOJ does not simply place US companies in an impossible position Catch-22 whereby either the company opposes a just action by the U.S. government or the company violates the laws and regulations in the country where the data is stored.
Further, this precedent creates a gaping vacuum of protection for everyone else???s electronic identities in the age of international mobile commerce. By taking this action, DOJ is not helping the American people, but rather they are weakening protections for US citizens – both domestically and around the globe. With this action by the DOJ, other countries – even Russia, North Korea and China – have the reciprocal ability to access our emails or any digitally stored files based in any other country.
The challenge of protecting our electronic information while providing security in the mobile economy is complex and difficult to solve. More mobile apps are released everyday, hosted by an increasingly borderless system of cloud based remote storage. The amount of data per person – photos, apps and even personal medical data – is exponentially increasing every day. By the very nature of the distributed network that is the Internet, the data running these apps is stored in multiple countries located in almost any country around the globe.
However, the solution at this moment is fairly simple. Senators Hatch, Coons and Heller introduced the bipartisan ???Law Enforcement Access to Data Stored Abroad Act??? (S. 2871) a few weeks ago. The bill is a simple and prudent update to ECPA. It formally extends ECPA protections to our electronically data. The LEADS Act also assists our law enforcement agencies by providing a clear and unambiguous path to access electronic data with a properly issued warrant.
The bill also updates the Mutual Legal Assistance Treaty process by directing DOJ enter into the 21st Century, with the creation of an ordinary online form to allow other nations to submit legal requests to access data systems based in the US.
However, hesitating will only empower rogue nations to determine how and when they access our personal data, and our normal trading partners will have yet another excuse to enact protectionist laws that discriminate against our world-leading technology companies. Hopefully, Congress will see fit to consider this legislation in a timely manner before DOJ???s unprecedented action triggers retaliatory actions by our allies and even those less friendly.
Dan Horowitz is the former staff Director of the House Small Business Committee and a veteran of the House Republican Leadership.