What Could an Updated ECPA Mean for Cloud Service Providers?

Sen. Patrick Leahy (D-Vermont) dropped a potential game-changer in the U.S. Senate May 17 , 2011, when he introduced a bill updating the Electronic Communications Privacy Act (ECPA). The major amendment? Leahy is seeking a provision that would require a judge to issue a search warrant before a cloud service provider is obligated to give up customer data. If enacted, it could answer a lot of lingering legal questions surrounding cloud computing.

Here’s the really important bit from Leahy’s press release, which also contains the full wording of the bill:

The Electronic Communications Privacy Act (ECPA) Amendments Act will make commonsense changes to existing law to improve privacy protections for consumers’ electronic communications and to clarify the legal standards for the government to obtain this information. The legislation includes enhanced privacy protections for the content of Americans’ email and other electronic communications, which would be subject to a search warrant requirement based on probable cause. The bill also includes new privacy protections for Americans’ location information that is collected, used or stored by service providers, smartphones and other mobile technologies.

Leahy said the time is right, right now: When the ECPA was first passed in 1986, we barely had conceived of enterprise computing, let alone smartphones, tablets  and the cloud. And now the ECPA needs to include new provisions for new technologies. Additionally, it includes a legally protected way for cloud service providers to report information they believe is leading up to a cyber-attack, assuming that a certain number of conditions are met.

Back in December 2010, a court ruling had similar legal implications for the cloud channel. But assuming it gets passed, and in a form similar to what Leahy’s proposed here, it could be an importantly explicit legal protection for providers and customers alike.

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