If some law enforcement representatives get their way, wireless carriers in the U.S. will be forced to record and store users' text messages, seemingly indefinitely, to be accessed and pored over for future investigations.
Thankfully, Congress will have final say, and Google was on hand to testify at a hearing today over reform of the outdated Electronic Communications Privacy Act (ECPA).
The Act was created in 1986, and the Digital Due Process coalition - a group dedicated to "modernizing surveillance laws for the internet age" that includes Google and 80 other organizations - wrote on its homepage that it "was a forward-looking statute" at the time.
That's no longer the case, but as Google and other tech giants fight for ECPA reform and privacy in the internet age, law enforcement ranging from the Major Cities Chiefs Police Association to the National District Attorneys Association are fighting to impose their own agenda on proceedings.
Making things difficult
Some carriers already store text messages, but there's no rhyme or reason involved, reported CNET. There are currently no laws dictating how they do so.
But if a congressional panel accepts the proposal presented today, then ECPA reform won't be possible unless some such law is added.
Today's proposal came from Richard Littlehale of the Tennessee Bureau of Investigation, who requested that Congress add a law requiring carriers to retain SMS data to any update to the ECPA.
A similar scheme was presented to Congress by the aforementioned law enforcement agencies (and others) in December. These efforts, if adopted, would represent a major shift in the battle over data privacy, and would make updating the ECPA difficult for the groups asking for reform in the other direction.
Those groups include Apple, Facebook, Twitter and Google, a representative for which also testified on Capitol Hill.
Google testifying for change
Google's Legal Director of Law Enforcement and Information Security Richard Salgado planned to testify to the House Judiciary Subcommittee evaluating the ECPA update proposals, according to an announcement from Google.
"The [ECPA], though ahead of its time in many ways when enacted, needs to be brought in line with how people use the internet today, provide them with the privacy they reasonably should expect, and allow the growth of the Internet - and the job creation and economic opportunity that such growth brings - to continue," Salgado wrote in his planned testimony, which Google posted online.
"Google believes this can be done while also ensuring that government agencies have the legal tools they need to efficiently and effectively protect public safety."
Google already has a strict set of guidelines for handling government requests for information, which were made public in January. They include notifying users that they're being investigated and requiring search warrants to release users' private data.
Another part of Littlehale's proposal suggested that Congress alter any update to the ECPA with "emergency" provisions that would, under certain circumstances, require providers and carriers to divulge data to law enforcement whether or not they actually have a warrant.
DoJ weighs in
Also testifying today was Department of Justice attorney Elana Tyrangiel, who told the subcommittee that the DoJ now believes search warrants should indeed be required for authorities to access emails, according to Engadget.
Previously, the Justice Department's stance allowed greater leniency for accessing emails that were more than six months old or that had already been opened.
Tyrangiel's testimony stated, though, that the DoJ now found "no principled basis" for that position.
TechRadar asked Google about the search giant's stance on ECPA reform given the possibility that mandatory SMS data retention for wireless carriers (and other unforeseen measures) will be folded into the same proceedings, and we'll update this article if and when the company responds.
We also asked multiple wireless carriers to see if any could outline their current SMS storing policies. Representatives from Verizon and Sprint informed us that they have no comment at this time. We're still awaiting a response from AT&T.
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