Bipartisan Support for ECPA Reform Snowballs in Congress
For years, tech industry leaders and privacy advocates have been urging Congress to update the Electronic Communications Privacy Act (ECPA). This outdated statute says that government agents can access private online content, including email, without a warrant from a judge. Now, following a string of scandals involving government overreach into the lives of Americans, ECPA reform is gaining serious momentum. Five bipartisan ECPA reform bills have been introduced this year and the Department of Justice, which has long been the most forceful opponent of reform, has publicly reversed its stance.
Spurred by revelations that the IRS was playing politics with its review of applications for tax-exempt status and had claimed that Americans who use email had no expectation of privacy, Representatives Kevin Yoder (R-KS) and Tom Graves (R-GA) introduced the Email Privacy Act, H.R. 1852, in the House. It rapidly picked up nearly 80 cosponsors, including Democratic Rep. Jared Polis (CO), a staunch digital rights champion. The Yoder-Graves bill is identical to a Senate bill, the ECPA Amendments Act, S. 607, sponsored by Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) and favorably reported by the Senate Judiciary Committee on a voice vote in April. Another House companion to the Leahy-Lee bill, also called the ECPA Amendments Act, H.R. 1847, was introduced by Rep. Matt Salmon (R-AZ) and has 18 co-sponsors. All three bills would require the government to get a warrant before accessing private digital content stored in the cloud. Nearly 100 tech groups have stated their support for the Senate bill.
Another bipartisan bill, the Online Communications and Geolocation Protection Act introduced by Representatives Zoe Lofgren (D-CA), Ted Poe (R-TX), and Suzan DelBene (D-WA), would not only require government agents to get a warrant in order to force service providers to disclose private digital content but would also require a warrant to track people in their daily lives using the increasingly precise location information generated by mobile devices.
Finally, in the wake of news that the Department of Justice collected AP reporters’ telephone records, Representatives Justin Amash (R-MI), Mick Mulvaney (R-SC), Polis and Lofgren introduced the Telephone Records Protection Act, which would require a judge’s approval before the government accesses phone records.
What is most striking about these five bills is that they have widespread bipartisan support. Updating ECPA to ensure warrant protection for our digital information is that rare issue in Washington on which both parties can agree.
On top of that, in a stunning public turnaround, Attorney General Eric Holder recently testified that the Department of Justice would support a warrant requirement for online content.
ECPA reform has bipartisan support. And we have a new public stance from the DOJ. But doing anything positive in Washington is difficult. In order to make ECPA reform a reality, we need a strong push from the public.
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