Restoring Balance to American Surveillance Laws

Posted by Mike Hintze 
Associate General Counsel

Many members of the tech community believe that American surveillance laws need to be modernized for the digital age.  Today, that effort takes an important step forward as a broad coalition of advocacy groups, technology companies and academics announces a new initiative, Digital Due Process, dedicated to updating these important rules.  As part of the Digital Due Process initiative, Microsoft and our fellow coalition members are urging Congress to update the Electronic Communications Privacy Act (ECPA) to ensure that data individuals store in online, cloud computing services receives the same level of privacy protections as data stored on PCs in people’s homes.

As Microsoft General Counsel Brad Smith discussed in a speech at the Brookings Institution in January, ECPA was passed nearly 25 years ago to establish standards for government access to e-mail and other electronic communications when conducting criminal investigations.  At that time, most Americans had never heard of e-mail, the Internet or mobile phones.  Over the years, electronic communications have evolved dramatically and have become an essential mode of interaction for most Americans.  The law, however, has failed to keep up with changes in technology.  As a result, when applied to today’s online services, ECPA is complex and often unclear.  More importantly, when law enforcement officials seek data or files stored in the Internet “cloud,” such as Web-based e-mail applications or online word processing services, the privacy standard that is applied is often lower than the standard that applies when law enforcement officials seeksthe same data when stored on an individual’s hard drive in his or her home or office.

Citizens need government action to ensure that as more information moves from the desktop to the cloud, the country retains the traditional balance of privacy vis-à-vis the state.  Many Americans take for granted the protections of the Bill of Rights that prevent the government from coming into people’s homes without a valid search warrant.  The rise of cloud computing should not diminish these privacy safeguards.

According to a recent survey commissioned by Microsoft, 90 percent of the general population and senior business leaders are concerned about the privacy and security of their personal data in the cloud.  It is vital we restore balance to American surveillance laws as the cloud computing era evolves.  A balanced approach can help ensure that citizens’ data will be protected, law enforcement will have the tools they need and America will continue to lead in technological innovation. 

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Microsoft News Center Staff