Senate Committee Passes Long-Overdue ECPA Reform, but More Remains to Be Done

Today, the Senate Judiciary Committee unanimously passed the Lee-Leahy ECPA Amendment . That Amendment modifies the Electronic Communications Privacy Act (ECPA) to require law enforcement to obtain a warrant prior to obtaining access to private emails and other stored communications. As the law stands today, law enforcement and regulatory agencies may access emails without a warrant if the emails have been opened or if they are more than 180 days old. The following comment can be attributed to Berin Szoka , President of TechFreedom  :

What Mark Twain once said about the weather is true about Congress and privacy, too: everybody talks about it, but nobody ever does anything about it. Yesterday’s Senate Commerce Committee hearing on the status of the Do Not Track working group was par for the course in Washington: angsty blustering about a complex problem that few in Congress understand and that’s already being worked out by the various stakeholders.

But today, the Senate Judiciary did something constructive—and profoundly important. They took responsibility for fixing a problem Congress itself created back in 1986: failing to protect Americans’ emails from law enforcement snooping without the kind of judicial process required by the Fourth Amendment. This is the most important step towards long-overdue ECPA reforms since the House Judiciary Committee passed a bill 20-1 back in 2000. Sadly, that effort stalled, leaving Internet users’ privacy unprotected even as we all have increasingly come to rely on cloud services—not just for email but for things we used to do on our own computers, where our private files were fully protected by the Fourth Amendment.

We applaud the bipartisan support for ECPA reform. That should mean swift passage by the Senate and House. But ECPA reform won’t be complete until Congress enacts the other three principles advocated by the Digital Due Process coalition . Most significantly, that means a warrant requirement for location data. The Fourth Amendment requires nothing less. The courts are already heading towards that conclusion but Congress can’t wait for the courts to work out these doctrinal knots. The sooner Congress focuses on the real privacy problem—government access—the better.

Szoka is available for comment at media@techfreedom.org

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