Ask TechFreedom's Berin Szoka About Govt. Policy and Privacy Online

Berin Szoka is president and founder of the tech policy think tank TechFreedom. The group promotes a wide variety of digital rights and privacy issues. Most recently, they have started a petition demanding reforms to the Electronic Communications Privacy Act (ECPA) so that law enforcement will have to get a warrant before accessing emails stored in the cloud. With so much attention paid to the NSA snooping, Berin believes that the over 25-year-old ECPA has been overshadowed and is in dire need of changes. Mr. Szoka has agreed to answer your questions about privacy and government policy online. As usual, ask as many as you'd like, but please, one question per post.

Help promote our WhiteHouse.Gov petition today!

[Berin Szoka]

TechFreedom is part of a broad coalition of dozens of groups across the political spectrum are joining in a Day of Action TODAY to drive up the signature count on our WhiteHouse.gov petition: http://wh.gov/lBibY [wh.gov] We've got nearly 45k signatures but need to hit 100k by December 12. That's the threshold the WhiteHouse requires for getting a response to a petition. (Remember, they raised it from 50k after that "Please build a Deathstar" petition got 50k.) So please take a moment to sign the petition and share it with your friends! Just use the #ECPA hashtag or reshare or retweet our posts: https://twitter.com/TechFreedom/status/408644380946599937 [twitter.com] https://www.facebook.com/photo.php?fbid=701905029820560&set=a.621919951152402.1073741825.180669971944071&type=1&theater [facebook.com] This infographic explains ECPA in more detail: http://tch.fm/IHzTtE [tch.fm]

Re:

[EricWenger]

Join Microsoft and others in calling for an update to the Electronic Communications Privacy Act. Help us to lock in a requirement that law enforcement needs a warrant before demanding access to data in the cloud. www.aka.ms/ECPA. Sign the White House petition here: http://1.usa.gov/1kfoMUc [usa.gov]

Re:

[davester666]

Why so specific? Why not have it something along the lines of "must have warrant for specific business records"?

Or is that too far over the moon?

Re:

[CanHasDIY]

Considering the White House's.... less than amicable responses to previous petitions, what makes you think yours will make a difference? Do you honestly think you'll get a straight answer from the Liar-in-Chief's staff (because we all know he sure as hell isn't writing the responses)? Other than a rote re-iteration of the law as it's written today, that is.

Re:Help promote our WhiteHouse.Gov petition today!

[Berin Szoka]

I hear you, but ECPA reform needs all the help it can get. Even if the White House blows us off, crossing the 100,000 signature threshold will send a strong message to members of Congress to get behind ECPA reform. Until the leadership in both chambers is willing to schedule a vote, we're stuck.

Re:

[CanHasDIY]

Well, I appreciate your enthusiasm and am happy to help as much as I can, even though I doubt it'll do a lick of good.

You'd be more effective fundraising and buying your own congresscritter, like the mega-corps do.

Re:Help promote our WhiteHouse.Gov petition today!

[Berin Szoka]

Wow, and I thought I was jaded!

Seriously, though, the problem isn't getting one Congresscritter to work this issue: we already have several very dedicated champions in Congress carrying the banner of email privacy on principle.

The problem is that it takes a LOT of Members to get anything done. In particular, we need the leadership in both chambers -- which means Democrats AND Republicans -- to make it a priority. If we can't get 100,000 signatures, why should they?

Re:

[CanHasDIY]

Wow, and I thought I was jaded!

Oh, yea, you've got nothing on ol' Captain Cynical here. I make Wally from Dilbert look positively human.

Seriously, though, the problem isn't getting one Congresscritter to work this issue: we already have several very dedicated champions in Congress carrying the banner of email privacy on principle.

The problem is that it takes a LOT of Members to get anything done. In particular, we need the leadership in both chambers -- which means Democrats AND Republicans -- to make it a priority. If we can't get 100,000 signatures, why should they?

Fair enough; I'll sign your petition, and forward a copy to my own 'pet' representatives. Good luck in your endeavors.

Fixing ECPA is not enough..

[sotweed]

It's a lot more than just the ECPA that needs change and being added to our laws. The NSA seems to me
to be out of control. Let's reduce their budget in a major way!

Re:Fixing ECPA is not enough..

[Berin Szoka]

No, fixing ECPA isn't enough, but it's a start. It's something Congress can do right now. In fact, they've been dawdling about it for over a year, even after the Supreme Court said, in U.S. v Jones, that Congress needed to overhaul ECPA. (That case focused on access to location data but at least one Justice made clear that the framework of accessing all content stored by third parties, like email, needed reform.)

The good news is that the bipartisan Yoder-Graves-Polis bill [congress.gov] now has 157 House sponsors and is gaining steam steadily.

The bad news is that it's going to take a strong external show of support for ECPA reform to really move, largely because the Securities and Exchange Commission has been fighting to preserve their ability to get emails without a warrant. It's an arcane issue but one with broad implications for privacy, since other agencies, from the IRS to the ATF, could use the same loophole.

Now, if you're really worried about the NSA, the risk here is that, if ECPA reform stalls, it will signal to the NSA's defenders on the Hill that the privacy movement is weak, and if they wait long enough, the whole "Snowden thing" will blow over. At most, we might get a few measly reforms around NSA transparency.

Point being: getting ECPA reform moving is in no way a substitute for fixing the NSA. If anything, it's a prerequisite.

Re:

[sotweed]

Thank you for you informative response. I've signed the whitehouse.gov petition. And here and
elsewhere, I encourage everyone reading to write to their Congresscritters and demand reform,
rather than posting here. Eventually, they'll get the message.

Re:Fixing ECPA is not enough..

[Berin Szoka]

Thanks! Yes, the most constructive thing you all can do now is help us get as many signatures as possible on the petition. That means (a) signing and (b) asking your friends to do so, too.

Re:

[sotweed]

One other question: Is it clear what "fixing" ECPA means? Do you have a specific proposal? Or is it
just that a warrant is needed to examine "mail", regardless of how long it's been stored, whether it's
in flight or stored.

Everyone talks about "immigration reform" but I think there's a very wide spectrum of what that
means...

Re:

[Berin Szoka]

Oh, yes, we've been quite specific. The Digital Due Process Coalition [digitaldueprocess.org] launched in March 2010 based on four reform principles:

1. A governmental entity may require an entity covered by ECPA (a provider of wire or electronic communication service or a provider of remote computing service) to disclose communications that are not readily accessible to the public only with a search warrant issued based on a showing of probable cause, regardless of the age of the communications, the means or status of their stor

You ever get the feeling...

[atari2600a]

...that hosting a personal 'cloud' (email, file server, etc) on your personal internet connection leads to ending up on some list these days?

Re:You ever get the feeling...

[Berin Szoka]

For real! We're big believers in technological self-help, but even running your own email cloud won't protect you from warrantless collection of your emails: without ECPA reform, government could simply demand emails to and from you held by the cloud providers of those you correspond with.

Check out our lawsuit against the NSA, led by EFF!

[Berin Szoka]

While we're focused on ECPA reform today, we're also working hard to rein in the NSA, both in Congress and in the courts. Check out the lawsuit led by our friends at the Electronic Frontier Foundation against the NSA's collection of call records: First Unitarian Church of Los Angeles v. NSA [slashdot.org]. TechFreedom [techfreedom.org] and the ACLU are among twenty-two plaintiffs in this landmark lawsuit:

At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history. The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.

4th Amendment

[Travis Mansbridge]

Signed the petition yesterday! Wouldn't it make the most sense to extend the protections of the 4th amendment to include electronic communication, as it was extended in the 40s or 50s to include telephonic communication, or is that goal too lofty?