Tech Industry Recommends Transparency, ECPA Reform and Promotion of Cross-Border Data Flows Following White House Meetings

The administration should implement appropriate transparency for national security programs, said BSA The Software Alliance, Computer and Communications Industry Association, the Information Technology Industry Council, the Internet Association, the Software & Information Industry Association and Tech Net in the letter, addressed to Chief of Staff Denis McDonough and White House Counsel Kathryn Ruemmler (http://bit.ly/14Yl3Jg). They also urged the administration to support reforms to the ECPA to enhance privacy in law enforcement investigations, and to promote policies that allow for “unimpeded cross-border data flows” such as the U.S.-EU Safe Harbor Framework, they said in the letter.

Revelations about the National Security Administration’s surveillance programs have caused “significant repercussions” for the tech industry, the groups said, pointing to a study that posits the U.S. cloud computing industry alone could lose up to $35 billion during the next three years. They urge more transparency on how the NSA secures its data, on the scope of the government’s access, on the means by which data is collected and the level of oversight of that access. They renewed calls for a reconsideration of the limitations on what private companies can disclose about requests for information they receive. “Implementing such steps to increase transparency can assist in reestablishing trust, both domestically and globally,” they wrote in the letter. President Barack Obama said earlier this month he’s committed to reforms for the U.S. Foreign Intelligence Surveillance Court (FISC) and Section 215 of the Patriot Act (CD Aug 12 p5).

The administration also must support updating ECPA, the groups said. “The standards in the law are outdated and are not interpreted consistently. These standards need to be simplified and provide clearer privacy protections for users,” the groups wrote. The groups specifically heralded legislation from Sens. Patrick Leahy, D-Vt., and Mike Lee, R-Utah, that would update ECPA and would require law enforcement to obtain a warrant to obtain the content of all stored electronic communications. Former Rep. Rick Boucher, D-Va., said this week he expects Congress to move an ECPA reform bill later this fall (CD Aug 20 p7).

This summer’s disclosures about government surveillance have raised concerns in Europe about the reliability of the U.S.-EU Safe Harbor framework, the groups said in the letter. “We urge the Administration to engage with EU officials to ensure that the Safe Harbor continues to be a viable mechanism for cross-border data flows,” they said. They said negotiations for the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership are areas where the administration could demonstrate its trustworthiness to European officials on data collection and security mechanisms.

"The trade associations on the letter have worked with our respective members to shape recommendations to address these important concerns as well as the importance of fostering technology innovation and economic growth,” said Tom Gavin, ITIC vice president-external affairs. “These ideas are part of an ongoing discussion that we're having with policymakers, privacy advocates and other stakeholders,” he said, saying the groups plan to keep “open lines of discussion.” SIIA President Ken Wasch said in a statement the recommendations are “one important step in helping to move the debate forward in order to find effective, balanced solutions.” He said the industry is positioned to help the government achieve a balance between the needs of law enforcement and national security and the protection of privacy and civil liberties. Transparency, he said, is a “key element” to achieving those goals.

The tech industry’s united push in Tuesday’s letter for ECPA reform is a “particularly significant” step in the industry’s efforts to respond to the summer’s revelations about government surveillance, said Harris. “It’s one thing to join a coalition or sign on to bills, but to go to the White House and say, ‘We want you to step up on this,’ that should not be dismissed,” she said. “This is a concrete step Congress can take now to restore the trust of people in the U.S. and globally that their data is protected against warrantless access. The White House has to embrace this recommendation and get out in front of it, and support the bipartisan bill in front of Congress.”

Harris expects the technology industry to continue to take bolder positions on these types of issues, saying the letter is an important first step. “You're turning a battleship here. All during the years of the Patriot Act and FISA, the industry just stayed silent and did not engage,” she said. “The most important thing that this letter signifies to me is that industry now understands what’s at stake for its business interests and for trust in their services, and it’s a statement that they will engage.” She expects that “engagement to deepen as they come to understand how much trust building is necessary. ... They're going to come to understand that they're going to have to be bolder than perhaps they've ever been in this area” to bring everyone around.