On Thursday, a panel commissioned by President Barack Obama to examine the implications of "big data" concluded that cloud and e-mail content should be constitutionally protected—a recommendation that Congress is seemingly unwilling to adopt.
The panel—which included White House counselor John Podesta, Secretary of Commerce Penny Pritzker, Secretary of Energy Ernest Moniz, the President's Science Advisor John Holdren, the President's Economic Advisor Jeff Zients, and other senior officials—recommended that an aging law be changed to require that authorities obtain warrants to seize cloud-based content and e-mail. Such data, when it is stored on third-party servers and older than 180 days, is not constitutionally protected.
"The laws that govern protections afforded to our communications were written before e-mail, the Internet, and cloud computing came into wide use. Congress should amend ECPA [the Electronic Communications Privacy Act] to ensure the standard of protection for online, digital content is consistent with that afforded in the physical," the panel concluded.
But it's uncertain whether Congress would actually amend ECPA, the privacy law in question that was adopted during the Reagan era.
Here's why: the Senate Judiciary Committee passed a reform measure last year requiring the authorities to obtain a probable-cause warrant to acquire cloud-based data—the same Fourth Amendment standard necessary to search the same material if it was on a hard drive in your house. However, an anonymous lawmaker or lawmakers has blocked the measure from going before the full Senate for a yes or no vote.
And that's despite the unheard of support from the Justice Department saying it backs the Senate package to enhance the public's privacy protections.
What's more, at least 200 lawmakers on the House side have co-sponsored a similar bill, yet it remains idled, too, amid concerns from the Securities and Exchange Commission, which opposes the plan. That's an unprecedented number of lawmakers to ever sponsor a piece of legislation. And similar packages have been floating about for years.
On Monday dozens of groups, from those representing civil rights to business interests, urged the government to reform ECPA. Even the US Chamber of Commerce was on board. That says a lot because the chamber represents companies the SEC likely would be examining for stock irregularities.
Google, Microsoft, Yahoo, and others are invoking a recent federal appeals court ruling and are demanding warrants despite ECPA, but the entire tech sector is not.
The White House panel on Thursday also urged Congress to pass a host of other pieces of legislation relating to student privacy and data-breach notifications
Listing image by Whitehouse.gov
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