Increasingly, computer users are turning to cloud storage to hold on to their files and data. They do so not only to have access to these files whenever and wherever they want, but also because they expect storage in the cloud to be private and secure, with files shared only with those the user specifically designates.

In the United States, one would expect the Fourth Amendment to be a sufficient guard against data stored in the cloud from being accessed by government agents without due process. Unfortunately, that is just not the case.

The lack of clarity on privacy expectations in the cloud is just one more reason for Congress to give serious consideration to S.607, the Electronic Communications Privacy Act Amendments Act. Sponsored by Sens. Patrick Leahy, D-Vt., and Mike Lee, R-Utah, and passed by the Senate Judiciary Committee in April, the bill would require government agencies to acquire a warrant before demanding cloud-hosting companies to turn over users’ private data.

Some agencies, like the U.S. Justice Department, already do this as a matter of practice. However, other agencies — particularly civil agencies like the EPA, IRS, FCC, FEC and CFPB, among others — do not necessarily follow the same procedures. In fact, the Securities and Exchange Commission has specifically requested an exemption to obtain digital communications without a warrant.

This would completely turn the judicial process on its head. The entire point of the process is to keep investigations limited to relevant issues, protecting individual privacy as well as privileged documents that cannot be disclosed. What the SEC wants is to effectively have the Fourth Amendment repealed, perhaps because it thinks the NSA’s actions have effectively done just that.

S.607 also has safeguards to ensure that investigations are not impeded by a hasty notice that a warrant has been issued, a criticism raised in some quarters. Unfortunately, it would also not put a stop to the NSA spying programs, as Section 6 of the bill is a carve-out for FISA. Part of this is a necessity, in order to avoid creating a too comprehensive bill that might not get support in Congress. By having these carve-outs, Leahy and Lee are likely trying to obtain a wider base of support. If they can get Congress to back this bill, it will become easier for other reforms targeting the NSA programs later on.

While a great deal of the public’s attention is on those programs, we should not forget that there are many other arms of the federal government that must be managed.

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