Update privacy protections of electronic communications

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Tom M. Conley, guest columnist

The year 1986 was the year of Top Gun, the Challenger explosion and ‘Da Bears’ Super Bowl Champions led by Mike Ditka. IBM’s PC Division (no, not politically correct) announced its first laptop computer, the PC Convertible, weighing 12 pounds. This was 18 pounds lighter than the earlier portable computer! It was a time long before smartphones, online banking, social media and when a cloud was something in the sky, not a medium for off-site electronic storage. While technology has exponentially advanced since 1986, the protection of the online information that computers store sadly has not.

Because 1986 was also the year the Electronic Communications Privacy Act established standards for government access to private information that is transmitted and stored on the Internet (“The Cloud”). The act’s authors could not have foreseen how drastically the Internet would develop and how cloud-based services would literally transform the way we live, work and store our private information. Unfortunately, while the pace of innovation accelerated and a sizable shift to storing content in the cloud has occurred, the elements of the Electronic Communications Privacy Act have remained unchanged. This means the information — our information — we store on the cloud is not safe from warrantless government seizure.

The Fourth Amendment to the U.S. Constitution protects U.S. citizens against unreasonable (unlawful) searches and seizures by our government. Warrants can be issued by a court, but only upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the people or things to be seized. The Electronic Communications Privacy Act’s outdated provisions, which lag far behind the digital revolution, has now resulted in countless unintended consequences that threaten long-standing privacy protections the framers of the U.S. Constitution clearly intended to guarantee us. For instance, the act’s antiquated provisions permit law enforcement agencies to access and obtain, without a warrant, cloud-based content (files on remote servers) that are older than 180 days. Such unprotected, warrantless access by the government includes access to private emails, financial records, photos shared with friends and family and all other content stored in the cloud. Ironically, were these exact same private emails, financial records and other records stored in your home, they would be subject to Fourth Amendment protection. However, since they are stored “in the cloud” they have no such Fourth Amendment protection. However, that is all about to change. Thankfully, efforts are underway to update the Electronic Communications Privacy Act and reinforce privacy protections afforded by the Fourth Amendment to the United States Constitution.

On April 27, the U.S. House of Representatives passed the Email Privacy Act by a rare, unanimous vote of 419-0, with all four Iowa Congressmen voting in favor. The Email Privacy Act provides much needed updates to the act’s antiquated provisions. Most importantly, it requires government agencies and law enforcement to comply with the Fourth Amendment to the United States Constitution and obtain a warrant to access emails or other digital communications more than 180 days old. Thank you to all four Iowa Congressmen who voted for the Email Privacy Act.

As technology continues to advance and the dependence on the Internet grows, reforming digital privacy protections becomes increasingly favorable in Iowa, as well as across the country. Vox Populi Polling conducted an Iowa poll in November of 2015 in which 81 percent of Democrats and 76 percent of Republicans supported reforming the Electronic Communications Privacy Act. Furthermore, at least 86 percent of respondents supported such reform in every national region surveyed. The desire to update this act clearly spans across all ages, races and political affiliations.

The Email Privacy Act now advances to the U.S. Senate, where Iowa’s Senior Sen. Chuck Grassley is a leader in advancing bipartisan legislation out of the Senate Judiciary Committee. Under Grassley’s chairmanship and unwavering leadership, the Judiciary Committee has reported 26 Senate bills in the 114th Congress, all with bipartisan support. And just last week, Senator Grassley signaled support for the reform of the Electronic Communications Privacy Act by announcing that he was planning to bring reform legislation before the Judiciary Committee in the coming weeks.

All Americans deserve to have their Fourth Amendment protections applied to their digital property in the same manner as their physical property. I hope you will join me in thanking our four Iowa Congressmen who voted for the Email Privacy Act as well as to thank and support Sen. Grassley for his leadership in advancing this critically-important reform legislation across the finish line. The time is now.

• Tom M. Conley is president and CEO of the Conley Group, Inc., in Urbandale. Comments: Tom.Conley@TheConleyGroup.com

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