Privacy Law Finally Gets An Upgrade

Steve Sherman
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Posted: Aug 27, 2016 12:01 AM
Privacy Law Finally Gets An Upgrade

Most of the privacy laws being used currently were written when flip phones were all the rage. If you haven’t noticed, times have changed. Entire computers sit comfortably in our hand or back pocket if you’re a millennial. Data storage, email, and cloud based tech have changed our entire world. With that change legal challenges have evolved and it is time to update our severely outdated legal framework for dealing with privacy issues.

I’ve written about it before, and I am glad to say that a viable option is here.

It is called the International Communications Privacy Act (ICPA). We have to thank a group of bi-partisan legislators for getting it introduced: Senators Orrin Hatch (R-UT), Chris Coons (D-DE), and Dean Heller (R-NV).

The most powerful changes from this bill update the old school Electronic Communications Privacy Act from 1986 and bring it into the modern age.

In 1986, I had a sweet mullet and was still playing Bon Jovi cassettes. (Yes, it was awesome.) However, it is time to modernize, though the mullet may have its day once again, our online legal security needs an upgrade.

The courts have actually tasked our legislators to get this done and it looks like they may actually come through. The goal is to update current law and strike a balance to both safeguard consumer privacy and law enforcement’s need to access certain communications after satisfying the requirements of a warrant.

Our privacy is becoming a big deal. Just ask Hillary if it’s a big deal. She’s been trying to “wipe” that server for a while now and thousands of emails just keep appearing. The ICPA will create a framework for the law to operate that is both logical and techno-logical.

Our world is data driven and cloud based. The cyber-world knows now international boundaries. The cloud is not American or Russian or Chinese. But our rights as Americans need to have a solid footing and this is a great start.

Senate Judiciary Chairman Chuck Grassley (R-IA), even though he is in his 80’s is kind of famous for his “down-home” tweets is on board with seeing this improvement to our law. Include, House Speaker Paul Ryan (R-WI), and Senate Majority Leader Mitch McConnell (R-KY). The outlook is fairly positive to seeing some substantial improvements to this antiquated law.

This truly is bi-partisan group includes the Ranking Member of the Senate Judiciary Patrick Leahy (D-VT) who is also ready to step into the 21st century. Both parties should be behind this as it really doesn’t matter what side of the aisle you are on. Cyber-security is a big deal and getting the laws right is a giant leap forward.

Here are the main points of what the ICPA will do:

  •       The bill requires law enforcement agencies to obtain a warrant for all content;
  •       The bill allows law enforcement to obtain the content of electronic communications stored with electronic communication service providers and remote computing service providers pursuant to a warrant;
  •       The bill creates a clear legal framework for law enforcement to deal with electronic communications of citizens when that data is held overseas and deals with foreign nationals;
  •       The bill reforms something called the Mutual Legal Assistance Treaty (MLAT) process that has proven difficult to implement; and,
  •       The bill establishes the idea that data providers should not be subject to data localization requirements that are incompatible with the borderless world we live in with regard to the storage of data and breadth of the Internet.

Some worry that this will negatively impact law enforcement, but this will add some needed specifics to the law and will make it easier for law enforcement to understand the rules for gathering information pursuant to a warrant based on probable cause for data held outside the U.S.

Even though my teenaged self happens to think 1986 was totally awesome and “Rad,” my forty-year-old self is glad to see our legislators finally updating old laws to keep up with technology.

Our world and the data we all produce is going to need constant updating to ensure that the idea of a right to data privacy recognized by the 4th amendment to the Constitution will continue to persevere in the digital age.

This is just the start.