Bill to Amend 1986 Communications Privacy Law Goes to Senate

This post was originally published by Engine Advocacy. Engine’s mission is to create an environment where technological innovation and entrepreneurship thrive by educating and working with startups and lawmakers to construct smarter public policy. See the full post here.

Senator Patrick Leahy (D-VT), author of the original Electronic Communications Privacy Act (or ECPA), is once again pushing for amendments that take into account rapid advances in technology since, er, 1986. Passing the Senate Judiciary Committee today, the bill will soon be debated by the Senate.

In Leahy’s own words, the “bill takes several important steps to improve Americans’ digital privacy rights, while also promoting new technologies—like cloud computing—and accommodating the legitimate needs of law enforcement.”

Engine, together with a coalition of tech companies, is pleased with the clarity this new act brings to how content can be accessed by government; excluding emergencies, law enforcement must obtain a warrant in order to compel a service provider to disclose the private content of users.

Since data plays an increasingly important role for many startups, uncertainty about compliance increases the burden of time and resources, and puts a strain on user trust. Currently, a complex legal request from law enforcement would force startups to chose between legal action and alienating users.

The bipartisan Amendment Act is co-sponsored by Senator Mike Lee (R-UT). “When ECPA was enacted”, Senator Lee explained, “email was primarily a means of communicating information, not storing it. Today, we use our email accounts as digital filing cabinets, where we store many of the personal documents and sensitive information that the Fourth Amendment was meant to protect. This bill takes an essential step toward ensuring that the private life of Americans remains private.”

Here’s a rundown of this new bill:

  • Search warrant required for email and other electronic communications, when those communications are stored with a third-party service provider
  • Requirement does not apply to other Federal criminal or national security laws including the Wiretap Act and Foreign Intelligence Surveillance Act of 1978
  • Government can use administrative, civil discovery and grand jury subpoena to obtain corporate email and other electronic communications directly from a corporate entity, when the content is on an internal email system
  • Government can use civil discovery subpoenas to obtain non-content information
  • Bill eliminates the outdated “180-day” rule that calls for different legal standards for the government to obtain email content depending upon the age of an email
  • Government must notify an individual whose electronic communications have been disclosed within 10 days of obtaining a search warrant, but they can also seek a court order to delay this notice in order to protect integrity of ongoing investigations

Share Post