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DMA Gains Headway to Close ECPA Loophole

2 Jul, 2014 By: Doug McPherson

NEW YORK – The Direct Marketing Association (DMA) is reporting that its efforts to reform the Electronic Communications Privacy Act (ECPA) have hit a milestone with 218 members of the House, both Democrats and Republicans, now supporting H.R. 1852, a bill that would create fundamental safeguards to protect marketing data.

“If a federal agent shows up at your door asking to search your home, you would immediately ask for a warrant,” says Stephanie Miller, the vice president of member relations and chief listening officer at DMA. “Direct marketers should care that a loophole exists that allows agents to search digital records – including marketing messages – without one.”

Miller says despite advances in Web and mobile technology during 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deliberation, Congress is finally making progress on reforming the Electronic Communications Privacy Act (ECPA), an outdated law that threatens our online privacy and violates our basic rights,” Miller says.

The DMA also cites a recent poll that says 84 percent of Americans expressed a desire to reform ECPA. The DMA has said ECPA reform is a top priority for DMA and its members. Since Representatives Kevin Yoder (R-KS), Tom Graves (R-GA), and Jared Polis (D-CO) introduced H.R. 1852 last year, DMA has pushed lawmakers to support “warrant for content” reforms to ECPA.

“The Yoder-Graves-Polis bill gives Congress the rare opportunity to guarantee the same amount of privacy to electronic communications as those offline,” Miller says. “DMA urges Congress to move expeditiously to pass H.R. 1852 out of the Committee.”

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 E-mail, 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 E-mail or document is more than 180 days old.

Miller says although ECPA was sufficient in 1986, when CompuServe dominated the electronic market and most people had never heard of E-mail, modern cloud technology means that ECPA has become a massive, gaping loophole for law enforcement.

The DMA also shared 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.

“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,” Miller says.

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