SALT LAKE CITY — As a medium of expression that blossomed in popular consciousness in the late 1990s, the Internet is beginning to reach its adolescent years.
We've evolved from static Web pages to social networking to "cloud computing," which means that personal documents aren't stored on our computers and smartphones but on servers throughout the world.
And yet citizens' security in their digital possessions has never been more threatened. Fortunately, there are two bills — one co-sponsored by Utah Sen. Orrin Hatch, the other co-sponsored by Utah Sen. Mike Lee — that go a long way to restoring constitutional protections for Internet information.
It's important at the outset to dispense the shibboleth that the Internet changes everything. What the Internet needs is a strong dose of 18th century legal wisdom, not words about "freedom of expression in the 21st century," to quote the chairman of the Federal Communications Commission during last Thursday's vote by the agency on network neutrality.
The Constitution says that we have the right to be secure in our "persons, houses, papers and effects." We have the right to speak free from regulation by the government. There are some who say that the Internet has rewritten the laws of supply and demand, or changed common decency and morality, or altered the possibility of being free from police surveillance. They are mistaken.
The Fourth Amendment to the Constitution articulates the right of Americans’ sources of private informational documents to be secure "against unreasonable searches and seizures." This doesn't prevent the government or the police from obtaining information upon probable cause or reasonable suspicion; it simply bars the issuance of general warrants.
On Feb. 4, a bipartisan group of senators and representatives introduced the Electronic Communications Privacy Amendments Act of 2015. “The bill we are introducing today protects Americans’ digital privacy — in their emails, and all the other files and photographs they store in the cloud," said Sen. Patrick Leahy, D-Vermont, who has long been seeking to update this law that first passed in 1986.
The language of that original ECPA law focused too specifically on technologies used in early electronic mail services. As a result, it didn’t protect the privacy of data when stored by another company in a cloud-based service.
Both this year and during last Congress, when he introduced a similar measure, the Democrat Leahy has been joined by the Republican Lee. When the bill was reintroduced last month, Lee said: "The prevalence of email and the low cost of electronic data storage have made what were once robust protections insufficient to ensure that citizens’ Fourth Amendment rights are adequately protected."
ECPA isn't the only proposed law that would restore privacy protections granted in the Fourth Amendment to documents stored in the cloud. Another such measure, introduced on Feb. 12, is the Law Enforcement Access to Data Stored Abroad Act, or LEADS.
Sponsored by Hatch and Sens. Chris Coons, D-Delaware, and Dean Heller, R-Nevada, the bill addresses an unfortunate federal district court decision in June that required Microsoft to hand over data stored in an Irish data center to federal prosecutors. “If the government’s position prevails, it would have huge detrimental impacts on American cloud companies that do business abroad,’’ attorney Michael Vatis told the Washington Post. Vatis co-authored a brief by Verizon Communications defending Microsoft's position on the Fourth Amendment.
"While I agree in principle with the ECPA reform bills," Hatch said, speaking of the Leahy-Lee measure, it does not "establish a framework for how the U.S. government can access data stored abroad." Hatch said that the issues faced by U.S. companies storing data on behalf of U.S. customers is important whether the data is stored in the U.S. or overseas.
A trade group advocating on behalf of Internet infrastructure companies has identified ECPA reform and the passage of the LEADS act as their key legislative priority this year. "One of the reasons that U.S. Internet infrastructure is used by businesses around the world is because people around the world know and count on the laws that govern access to data, and that they are reliable, transparent and uniformly enforced," said David Snead, co-founder of the Internet Infrastructure Coalition.
Referring to revelations of the past two years regarding the widespread surveillance of U.S. citizens by the National Security Agency, Snead said that the LEADS Act was "of increased importance because the confidence in the Fourth Amendment has been eroded."
The pace of technology change unleashed by the Internet makes it tempting to treat the principles in our Constitution and Bill of Rights as obsolete. But efforts to pass ECPA reform and the LEADS Act are important not because they would create new rights, but because they would restore the principles of the Fourth Amendment in the face of Internet change.