By Sophia Cope
On Wednesday, September 16, nine months into the 114th Congress, the Senate Judiciary Committee will hold a hearing on reforming the Electronic Communications Privacy Act (ECPA), the federal law that regulates government access to private communications records stored by third parties.
Right now, the statute allows the government to obtain private messages that are older than 180 days—including web-based emails, social media messages, text messages, and voicemails—as well as private documents stored by “cloud” service providers like Dropbox, with an administrative subpoena. ECPA was first passed in 1986 before Congress could imagine the wealth of personal information that would be stored on third-party servers rather than private hard drives.
EFF and a broad coalition of groups called Digital Due Process have argued for years that the government should have to obtain a probable cause warrant before accessing personal content, even if it is stored by third parties.
Two bills were introduced this Congress that would create such a “warrant-for-content” requirement: the Electronic Communications Privacy Act Amendments Act (S. 356), championed by Senators Leahy (D-Vt.) and Lee (R-Utah); and the Email Privacy Act (H.R. 699), championed by Representatives Yoder (R-Ks.) and Polis (D-Co.).
The bills would codify the 2010 decision in Warshak v. United States by the Sixth Circuit Court of Appeals, which held that the government violated the Fourth Amendment when it obtained emails stored by third parties without a probable cause warrant.
As we wrote in January, this is the third year in a row that bipartisan ECPA reform legislation has been introduced in both the Senate and House. While we commend Chairman Grassley for scheduling Wednesday’s hearing, we urge the Judiciary Committee to schedule a vote as soon as possible so S. 356 can move to the Senate floor.
There is already broad bipartisan support, as evidenced by the Senate bill’s nearly two dozen co-sponsors and the House bill’s nearly 300 co-sponsors. The Obama Administration supported ECPA reform in its 2014 “big data” report and then-Attorney General Eric Holder expressed his support for a warrant-for-content requirement in 2013.
While we believe the bill is ready for a vote, what will likely be discussed during the hearing is the proposed “civil agency” exemption, which would allow the Securities and Exchange Commission and other agencies to obtain without a warrant users’ private cloud content. We strongly oppose such a huge loophole.
If Chairman Grassley wants to address additional issues during the hearing, he should challenge the panelists to suggest how the legislation can be improved to better protect users. We believe that the government should also have to obtain a probable cause warrant before accessing location information generated by mobile devices, which is also a goal of DDP. The ECPA reform bills should also include a suppression remedy, meaning that if the government violates the law, a criminal defendant can have the ill-gotten evidence thrown out of court.
We urge you to contact your senators and representatives and demand that they support ECPA reform. For far too long our digital privacy has been compromised by an archaic law that no longer makes sense.
Law Enforcement Access
Warshak v. United States
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