Direct Marketers Should Care About Closing the ECPA Loophole

It seems logical, right?  If a federal agent shows up at your door asking to search your home, you would immediately ask for a warrant. Direct marketers should care that a loophole exists that allows agents to search digital records—including marketing messages—without one.

It’s true. Despite incredible advances in Web and mobile technology over the past 20 years, federal laws ensuring the privacy of electronic communications haven’t changed since 1986. After years of back-and-forth deliberation, Congress is finally making progress on reforming the Electronic Communications Privacy Act (ECPA), an outdated law that threatens our online privacy and violates our basic rights.

ECPA was enacted in 1986 to prevent federal agents from extracting electronic information from digital sources without a warrant. Specifically, the law says that federal investigators cannot conduct warrantless searches of any email, text, or electronic document either in transit or on a server. However, the law also states that federal investigators don’t require a warrant if the email or document is more than 180 days old.

Although ECPA was sufficient in 1986, when CompuServe dominated the electronic market and most people had never heard of email, modern cloud technology means that ECPA has become a massive, gaping loophole for law enforcement. Consider the following:

1)    In 2010 a federal circuit court called ECPA’s warrantless searches “unconstitutional.”

2)    Many federal agencies, especially the Securities and Exchange Commission (SEC), oppose ECPA reform because they use the current loophole to get around Fourth Amendment protections for physical evidence.

3)    Advocates of ECPA reform support an updated law that ensures that law enforcement has a “warrant for content” in all searches for electronic documents.

4)    In a recent poll by Vox Populi Polling, 84% of Americans expressed a desire to reform ECPA.

This month efforts to reform ECPA reached an important milestone: 218 members of the House, both Democrat and Republican, now support H.R. 1852, a bill that would create fundamental safeguards to protect online data from government abuse. H.R. 1852 was introduced in 2013 by Representatives Kevin Yoder (R-KS), Tom Graves (R-GA), and Jared Polis (D-CO). The bill gives Congress the opportunity to guarantee the same amount of privacy to electronic communications as those offline—upholding ECPA’s initial intention of privacy while adapting to modern audiences.

The bill states its purpose as: “To amend title 18, United States Code, to update the privacy protections for electronic communications information that is stored by third-party service providers in order to protect consumer privacy interests while meeting law enforcement needs, and for other purposes.”

Last year DMA listed “Reform the Electronic Communications Privacy Act (ECPA)” as one of its “Five Fundamentals for the Future.” Since then DMA has remained active in the conversation on ECPA reform, informing consumers of their rights, petitioning the White House for an updated law, and holding the government responsible for protecting online privacy in electronic communications.

It’s time to close the gap. Direct marketers should care about this and can contact their Congressmen to let them know that the industry supports reform.

  Stephanie Miller is VP of member relations and chief listening officer at the Direct Marketing Association. She is a relentless customer advocate and a champion for marketers creating memorable online experiences.  A digital marketing expert, she helps responsible data-driven marketers connect with the people, resources, and ideas they need to optimize response and revenue.
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