LEADS Act is logical path toward much-needed ECPA reform

The necessity of reforming the Electronic Communications Privacy Act (ECPA) has long been talked about in Congress, and it is time to take action. A sensible and bipartisan bill has been introduced that gives us a realistic path to reform. That bill is the Law Enforcement Access to Data Stored Abroad (LEADS) Act – we should examine it seriously. In today’s Digital Age, we store incalculable quantities of personal information on cloud servers which may be located anywhere in the world, something 1980s-era ECPA never anticipated. It’s time to modernize the way we conduct digital trade and the legal framework that controls how law enforcement agencies interact with this data.   

With little fanfare, this bipartisan bill was recently reintroduced by Sens. Orrin Hatch (R-Utah), Dean Heller (R-Nev.) and Chris Coons (D-Del.) last month (a companion bill was also introduced in the House). The bill will help achieve several important outcomes. LEADS will improve data privacy protections for U.S. citizens and residents while strengthening law enforcement cooperation with other nations.  The bill also preserves the essential balance between security and privacy. At the same time, it will signal to our foreign partners that we are serious about improving law enforcement cooperation with them. In these times, such improvements are vital to ensuring effective functioning of our law enforcement agencies while maintaining the privacy rights of our citizens. 

{mosads}We have all come to expect a certain level of privacy in our personal communications.  Our law enforcement agencies must follow procedures established by Congress and the courts to gain access to personal correspondence and data files.  These rules also govern access to information held overseas and controlled by long-standing mutual legal assistance treaties (MLATs).  But these clear principles have been partly obscured by the digital nature of today’s communications. Today many data centers operated by American companies are located in foreign countries and their electronic footprints cross numerous jurisdictions.  In these changing conditions, U.S. courts are now serving warrants to American technology companies demanding access to customer data stored overseas.   

We must bring greater clarity to these procedures by updating our laws to reflect today’s circumstances. The LEADS Act is an ideal opportunity to do this. It removes the gaps in ECPA by specifying that U.S. warrants apply to data stored abroad only when the owners are U.S. persons (citizens or residents) and only when execution of the warrants does not violate foreign laws. The bill also requires that the U.S. improve its MLAT procedures, which are the primary alternative mechanism to warrants in these situations. These clarifications to ECPA can only enhance U.S. cooperation with other governments. Strong relationships of mutual confidence with these governments are vital to the ability of our law enforcement agencies and courts to carry out their missions effectively.   

There are many examples from my service in government that illustrate the importance of U.S. cooperation with other countries as it relates to effective policy implementation, and I’d like to highlight two of them. 

Established in 2002 by Congress, transportation worker identification cards (TWIC) are intended to minimize the risk of bad actors accessing key aspects of the maritime transportation system.  Effective policy implementation meant the U.S., Canada and Mexico had to work together to make technical requirements interoperable. Treaties governed the intergovernmental work. Policy guidelines set the technical implementations in motion in each participating country.

In addition, a consortium of countries composed of Australia, New Zealand, Canada, the U.K. and the U.S. met regularly to share best practices for expanding e-government to improve services to the citizen, which included information sharing across law enforcement agencies. Each country used this information and implemented new approaches to bolster law enforcement cooperation without harming constituent services.

Without trust, reciprocity and shared information, these efforts will be futile.  Only by respecting the Golden Rule when cooperating with other countries can we hope to produce real results. The LEADS Act will strengthen our ability to maintain these productive relationships with international partners to the real benefit of American citizens.     

It is legislation like LEADS that will help the U.S. achieve broader, much-needed ECPA reform. The goal is clear – the laws should ensure that data stored in the cloud receives the same legal protections as data stored in our homes and at work. Senators and representatives have the opportunity to act on the legislation to ensure we do unto others as we would have them do unto us.  It’s time to provide better data privacy protections for our citizens while preserving U.S. relationships abroad.  I encourage Congress to take up The LEADS Act this session and strengthen America’s leadership in preserving the balance between security and privacy.

Evans has spent 28 years in the federal government and most recently was a presidential appointee as the administrator for E-Government and Information Technology at the Office of Management and Budget (OMB). She oversaw the federal IT budget of nearly $71 billion which included implementation of IT throughout the federal government. She currently serves as national director for the US Cyber Challenge (USCC) the nationwide talent search and skills development program focused specifically on the cyber workforce.