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ECPA Reform Amendment Adopted

Proposals to ITU Risk Open Internet

Will the White House Executive Order on Cybersecurity Look Like CISPA?

Featured on Policy Beta

October 2 - San Jose, CA - Jim Dempsey will be speaking at the 2012 Online Trust Forum.


Last week, a milestone was reached on the long road to reform of the outdated 1986 Electronic Communications Privacy Act, as the Senate Judiciary Committee adopted an amendment requiring government agents to obtain a warrant from a judge before accessing a person's email or other private content stored in the cloud. Meanwhile, it appears increasingly likely that the White House will take some action to bolster U.S. cybersecurity by issuing an executive order. Also in this issue, we highlight CDT's ongoing work around the upcoming meeting of the International Telecommunication Union (ITU), which raises important issues of Internet governance.

ECPA Reform Amendment Adopted

Last week, the Senate Judiciary Committee adopted an amendment that would require government agents to obtain a warrant in order to access the contents of email and other personal and proprietary documents stored "in the cloud." The warrant-for-content amendment would update the 1986 Electronic Communications Privacy Act (ECPA), which currently says that investigators can force service providers to disclose their customers' email and other stored documents with a mere subpoena, issued without a judge's approval. The amendment would implement a reform long recommended by CDT and by major Internet companies and public interest advocates from across the ideological spectrum. The vote is particularly significant because it came in the face of a flurry of opposing letters from law enforcement entities. Law enforcement officers do critically important work to fight crime, and electronic evidence is often key to their investigations, but the warrant requirement in the Judiciary Committee amendment would be no more onerous than the one required to open regular mail or to intercept phone calls and email in transit. The Committee is expected to resume consideration of the bill after the November elections, and weakening amendments are likely to be offered.

Proposals to ITU Risk Open Internet

A major CDT priority through the end of the year is to ensure that the upcoming meeting of the International Telecommunication Union (ITU) does not adopt treaty provisions that would threaten Internet openness, innovation, or freedom. One proposal we have criticized is that put forth by a trade association of European telecommunications companies (ETNO), which would have the ITU encourage adoption of a "sending party pays" model for Internet traffic. In a recent memo, we explain that the proposal is both unworkable and likely to discourage innovation both in Europe and in developing countries. Last week, CDT's Jim Dempsey spoke about the ETNO recommendation and other troublesome proposals at a meeting in Brussels of the European Internet Foundation. Readers can learn more about the upcoming ITU conference at CDT's ITU Resource Center, where we are posting comment and analyses as well as tools for activists working to shape the positions of their national delegations to the ITU meeting.

Will the White House Executive Order on Cybersecurity Look Like CISPA?

The White House has confirmed that it plans to issue an executive order on cybersecurity, achieving by administrative fiat some of what Congress has failed to accomplish through legislation. However, the order is unlikely to include the more troublesome aspects of cybersecurity legislation passed by the House earlier this year. That legislation, known as CISPA, had three elements of concern from a privacy perspective: (i) It authorized ISPs to share customer communications information "notwithstanding any law;" (ii) it allowed companies to share customer information directly with the nation's top spy agency, the National Security Agency; and (iii) it allowed the NSA to use the information it received for any national security purpose. A White House executive order can't override existing law, and, given the Administration's position on cybersecurity, the order would probably not include the second two elements either. However, an executive could, for example, encourage intelligence agencies to declassify more cyber threat signatures and share them with the private sector and share more classified information with cleared network operators. Also, it could require agencies to make public the extent to which they receive cybersecurity disclosures from private sector companies under existing law.

Defamation in the Internet Age

CDT belongs to an informal network of Internet policy reformers around the world, supporting them with analyses and advice on a range of issues, and exchanging ideas and information about policymaking for the digital age. As part of this ongoing effort, we recently released a paper exploring how the international human rights framework can be applied to limit abuses of defamation law.

CDT Comments on EU Notice-and-Action Inquiry

The European Commission is conducting a public consultation on "notice and action," the EU term for the process whereby copyright holders and others can seek to have infringing or otherwise illegal content removed from Internet platforms. As part of its expanding Brussels engagement, CDT has been participating, most recently filing comments urging that any guidelines for "notice and action" should maintain strong liability protections for intermediaries and provide effective safeguards against abuse.

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