Electronic Communications Privacy Act

A Free Internet, If You Can Keep It

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Editor’s note: U.S. Rep. Zoe Lofgren (D), a senior member of the House Judiciary Committee, represents California’s 16th Congressional District, which includes parts of Silicon Valley and San Jose in Santa Clara County. 

It was nearly a year ago that the Stop Online Piracy Act (SOPA) was introduced by Rep. Lamar Smith (R-TX). Millions would raise their voices to successfully oppose this legislation, which was viewed as one of the greatest threats to a free and open Internet ever to come before Congress. But the defeat of SOPA should be more than cause for pride — it must also prompt action to secure the future of the Internet.

That is why I recently introduced two bills to protect Internet freedom. With just a few weeks left this 112th session of Congress, it’s unlikely the bills will be acted upon this year. I introduced the bills as a starting point for the next session of Congress – to launch a serious discussion about what Congress should do to help ensure a free and open Internet. We need to do more than just halt bad legislation, we also need to improve existing laws and make government work in the interests of innovation and Internet freedom. The two bills I introduced – ECPA 2.0 and the Global Free Internet Act – were designed to do just that.

The first bill, ECPA 2.0, would modernize the Electronic Communications Privacy Act (ECPA) to protect the privacy of Internet users and wireless subscribers from overbroad government surveillance. ECPA sets legal standards that law enforcement agencies must meet to access digital communications data – such as when the police need a warrant to obtain your emails or cell phone location. (They don’t in many circumstances.) However, ECPA was enacted in 1986, years before the Internet and mobile phones became a key part of our daily lives, and ECPA is in sore need of an update to reflect how Internet and mobile services are used today.

ECPA 2.0 would apply our Fourth Amendment protections to digital communications, which I believe the U.S. Constitution requires. In addition to other fixes, the bill has a clear warrant requirement for email content, and would also require law enforcement to get a warrant to track cell phone locations – a matter of significant controversy in courts nationwide. Law enforcement may argue that keeping today’s weaker standards is important to their investigations, but ECPA 2.0 preserves the existing exceptions to the warrant requirement, such as those for emergencies and child exploitation cases. The principles in the bill are widely supported by major tech companies and civil liberties groups. ECPA 2.0 would go a long way toward protecting the privacy of Internet users from intrusive government surveillance while balancing the legitimate needs of law enforcement.

The second Internet freedom bill I intend to re-introduce next year is the Global Free Internet Act. The bill would create a standing Task Force composed of private-sector Internet policy experts and Secretary-level government officials, dedicated to evaluating and responding to threats to the Internet. When the next SOPA-like legislation, restrictive international trade agreement, or overbroad treaty from an international body becomes a threat, the Task Force created by the Global Free Internet Act would sound the alarm and propose a course of action.

Even after the political tsunami of grassroots opposition that defeated SOPA, the Internet continues to be at risk. Censorship of online content, country-specific technology standards, and burdensome requirements for market access hold back the Internet’s vast potential. The Global Free Internet Act would establish a formal process to proactively address these risks. Rather than grow the size and reach of government, I envision the Task Force as working to oppose regulations and policies that harm Internet users and businesses. It’s past time for the U.S. to have a team working to ensure freedom of information for Internet users and an open global marketplace for online services.

From the time I entered Congress in 1995 to now, the Internet has grown from 16 million users to nearly 3 billion.  The Internet has been so successful because it empowers people to connect and share information globally with limited restrictions. Yet SOPA clearly showed that we need a new generation of forward-thinking laws to secure the Internet’s continued success. So let us direct the tremendous energy that killed SOPA toward enacting strong pro-Internet policies.

The principles embodied in ECPA 2.0 and the Global Free Internet Act would protect Internet users’ free expression and privacy, preserve user trust in online services, and reaffirm the open and decentralized structure of the Internet. Through policies like these, we can ensure the Internet remains a thriving and vibrant engine for innovation, expression, and economic growth for decades to come.

A fact sheet for ECPA 2.0 and the Global Free Internet Act is available here