Statement on Protecting Internet Privacy and Due Process

On Thursday, the Senate Judiciary Committee will consider H.R. 2471 – an amendment to the current Electronic Communications Privacy Act (ECPA).  Enacted in 1986, ECPA specified standards for law enforcement agencies access to electronic communications and associated data, affording important privacy protections to subscribers of emerging wireless and Internet technologies. Technology has advanced dramatically since 1986, and the statute is in need of significant revision.

The Internet Infrastructure Coalition (i2Coalition) supports the warrant requirement for government searches of email and other electronic communications as outlined in the Manager’s Amendment to H.R. 2471 proposed by Senate Judiciary Committee Chairman Patrick Leahy (D-VT). This provision would establish consistent privacy protections regarding how information may be accessed by law enforcement. Information, regardless of whether it is in transit, received or in storage should be afforded the same privacy protection. Further a strict warrant requirement for accessing contents of electronic communications regardless of whether or not they are in storage will create a clear rule, allowing easier and more consistent compliance by providers and law enforcement.

Any proposed revision to the current legislation should ensure that traditional constitutional guarantees of due process are upheld.  The fourth amendment protects against unreasonable searches and seizures, along with requiring a warrant supported by probable cause.  Requiring a government entity to obtain a warrant for the disclosure of electronic communications is not only common sense, but it is also a constitutional guarantee.

Our leaders in Washington need to protect American innovation to maintain the United States’ competitive economic advantage around the globe.  The United States is by far and away the largest provider of cloud computing resources.  The use of the cloud is increasing exponentially due to its cost benefits, security, flexibility and the ability to allow users to share and collaborate.  The inconsistencies in our current legislation actually dis-incentives international companies from utilizing American cloud computing storage.  By providing a clear and consistent policy on privacy and due process, we are supporting American innovation and competitiveness around the world.

Most Internet infrastructure providers are small to medium sized businesses, yet we are a huge economic engine in the United States generating an estimated direct and indirect $46 billion in annual revenue with a trade flow to the United States of $92 billion. The nearly 60 members of the i2Coalition strongly urge Congress to support a warrant requirement to access all types of electronic communications regardless of whether or not they are “in use” or “in storage.”  This will uphold the traditional constitutional guarantees of due process for all of our customers and ensure that we are not stifling American competitiveness and innovation overseas.