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By George Lynch
Verizon Communications Inc. Jan. 31 voiced support for bills before Congress that would reform how law enforcement can access customer data held by communications companies.
Verizon, AT&T Corp., and other communications providers receive thousands of government requests each year for customer data and are concerned that the present legal framework governing such requests hasn’t kept up with new technology and doesn’t adequately balance privacy interests with legitimate law enforcement needs. Verizon is the second largest U.S. communications company behind AT&T based on 2017 revenue, according to Bloomberg data.
Updating the Electronic Communications Privacy Act (ECPA) and its subset Stored Communications Act (SCA), a 1986 law passed before the internet and email became prevalent, is necessary, Craig Silliman, Verizon general counsel and executive vice president for public policy, said in a blog post. The outdated law didn’t anticipate technologies such as overseas email storage and accessing geolocation tracking data from mobile devices— both issues presently before the U.S. Supreme Court, Silliman said.
The post accompanied the release of Verizon’s transparency report for the second half of 2017 detailing government demands for the release of information. Verizon reported receiving 61,211 U.S. law enforcement subpoenas and 500-999 national security letters (NSLs) from July 1 to Dec. 31, 2017.
The ECPA Modernization Act ( S. 1657), sponsored by Sens. Mike Lee (R-Utah), Steve Daines (R-Mont.), and Patrick Leahy (D-Vt.), would require warrants for access to stored communications. It would eliminate an ECPA provision allowing the government to gain access to emails held for more than 180 days with only a subpoena. The bill would also add protections for stored and real-time geolocation information.
The International Communications Privacy Act (ICPA) ( S. 1671), sponsored by Sens. Orrin G. Hatch (R-Utah), Chris Coons (D-Del.), and Dean Heller (R-Nev.), would require a warrant for most communications regardless of whether they are stored in the U.S. or abroad.
The bills wouldn’t affect other government methods to access communications without a warrant, such as through national security letters authorized by the USA PATRIOT Act. Neither bill has undergone a mark-up in this Congress.
“The internet looks completely different than it did when ECPA was drafted over 30 years ago. It is time we update this law to better protect Americans’ right to privacy and reflect the internet of the 21st century,” Daines told Bloomberg Law Jan. 31.
The Supreme Court will hear two Fourth Amendment search and seizure cases in 2018 that could have ramifications for government requests for communications data from Verizon and similar companies.
In Carpenter v. United States, the court will decide whether law enforcement must show probable cause to obtain a warrant for cell-site tower geolocation data. Justices heard oral arguments in the case in November 2017. Verizon filed a friend of the court brief but didn’t take a position in favor of either side. The court is likely to rule in the case before its current term ends in June.
The Supreme Court in United States v. Microsoft Corp. will determine whether law enforcement can use the SCA to force Microsoft to turn over customer emails stored on servers in Ireland. Verizon filed a friend of the court brief in support of Microsoft.
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