In a rare act of bipartisanship—fueled by the heavily debated revelations and FBI inquiries leading up to the recent presidential election—the U.S. House of Representatives recently and unanimously passed the Email Privacy Act (H.R. 387).
The “EPA” is arguably the most important step toward better protecting cloud-based information.
Under the current law—the Electronic Communications Privacy Act (ECPA) of 1986—authorities can obtain content stored on the cloud from an Internet Service Provider (ISP) without the need to obtain judicial approval. If the new EPA is approved by the Senate and signed into law by President Trump, the updated law would require search warrants before any content—the actual communications in emails, the text in documents, images, videos and other forms of data—held by ISPs (e.g. stored on iCloud, Microsoft’s One Drive, Google, Gmail, ShareFile or Dropbox to name a few) is made available.
So what does this mean for business owners?
Businesses, large and small, depend on the Internet and, increasingly, cloud-based services to store private data. It’s virtually impossible today to remain competitive otherwise. With that in mind, here’s what businesses need to know about the EPA:
It can be beneficial to businesses because:
1. It gives additional protection
The EPA would help businesses, big and small, by giving them some margin of additional protection. It does so by requiring a judge to make an independent determination there is “probable cause” to issue a warrant, as opposed to simply requiring whatever government official or agency seeking the information to have an “articulable suspicion.”
2. It elucidates the current law
The EPA clarifies when ISPs must, and need not, respond to governmental demands for the disclosure of their customers’ information.
3. It can give U.S. companies a competitive edge
Given the widespread complaints abroad about the lack of legal protection available in the United States, the EPA makes U.S.-based cloud services and U.S. companies that store private information on the Internet more competitive internationally.
It can be less beneficial to businesses because:
1. Internal corporate communications can still be accessed
All businesses should know that internal emails among “officers, directors, employees or agents of [a] person or entity for the purposes of carrying out their duties” can still be accessed from an ISP by the government by an administrative subpoena or other means without a warrant.
2. As can public information
Publicly available information that “advertises or promotes a product or service” can also be accessed without a search warrant.
While the EPA is far less than a perfect solution for the protection of privacy, it is a good sign that reasonable minds have unanimously come together to constructively address this important issue—and update a 30-year-old law in need of modernization. May this be the first of many good things to come!
