Every day you hear about cloud storage and how our lives are changing because of our ability to access the cloud. Businesses big and small, from mom and pop shops to international corporations, utilize cloud storage on a daily basis, whether it is for email, data storage or applications.
Now, you might think that cloud data is, as its name suggests, stored out there in the ether. In reality, it is data storage dispersed virtually around the country and the world. But the rules that govern its security and accessibility were written in the 1980s, when big hair and popped collars ruled the landscape.
The Internet has changed the world since the early 80s in ways we could not have envisioned. (Thankfully, so did the fashion.) Unfortunately, our laws haven’t always kept pace with changing technology.
Digital storage decades ago was prohibitively expensive and email providers limited the capacity of their users’ accounts, many times deleting older emails as new email came in. If you wanted to save older emails, you printed them off. A lot has changed. Today, cloud enabled digital storage is ubiquitous, and modern day providers store data on servers around the world.
These changes and advances were not contemplated when the relevant laws were passed 30 years ago, specifically, the Electronic Communications Privacy Act (ECPA) which was designed to protect the privacy of electronic communications. But because ECPA was enacted during this era when data storage was very expensive and very limited, a loophole exists that allows government to demand and obtain emails that are older than 180 days without a warrant. In today’s world of nearly unlimited data storage, the inboxes and archives that contain our confidential business correspondence and private personal communications must be protected
Any business that interacts with international customers is also subject to the same type of government demand for information that could not only put that business in conflict with the laws of their customers’ countries, but also open them up to the potential for costly international litigation that could ensue from such demands. These are costs that are passed along to consumers.
And if the reaction of countries around the world is to impose regulations forcing companies in those countries to use only data centers in that country due to fears that the U.S. government could easily access that data, which is already being threatened, the duplicative costs associated with such a move would further drive up costs for cloud computing on businesses and consumers.
Moreover, if the U.S government has the ability to demand data from cloud service providers in other countries because that provider is a U.S. company, it would follow that foreign governments might try to impose the same demands. This would not be a good outcome for U.S. business.
It is imperative that the ECPA laws be updated to enable companies and cloud service providers to more easily comply with the Fourth Amendment, clarify international jurisdiction and reverse the threatened closure of significant markets to the U.S. businesses.
To address these issues and balance the needs of law enforcement and protect individual privacy, Sen. Orrin Hatch of Utah and Sen. Dean Heller of Nevada have introduced S. 2871, The Law Enforcement Access to Data Stored Abroad Act, or LEADS Act, and a companion House version by Representative Tom Marino of Pennsylvania and 14 other members including Arizona Congressmen Trent Franks and Matt Salmon.
The LEADS Act will address the conflicts of laws for cloud service providers in order to safeguard electronic data stored abroad. It will ensure that law enforcement has the tools necessary to execute search warrants, where necessary. Central to this legislation is the standard of ensuring the same rules that apply to government seizure of physical documents also apply to digitally stored documents.
As the LEADS Act makes its way through the U.S. Congress, businesses would be advised to follow and support the bill’s passage. The stakes are high for U.S. Business in a globally competitive market.