ECPA Reform Legislation Advances

Today, the Senate Judiciary Committee adopted by voice vote legislation that would amend the Electronic Communications Privacy Act to require government agents to obtain a warrant in order to access the content of email and other communications stored in the cloud. The legislation would help ensure that email, draft documents, and photos that people store online are as secure against government access as regular mail and material stored in a desk drawer. Establishing this principle has been a top CDT priority for years, and it is among the most important recommendations made by the Digital Due Process coalition, a diverse group of leading Internet companies and policy advocates from across the political spectrum. CDT’s statement to the press about the bill can be found here and those of other DDP members can be found here.

The Committee, under the leadership of Senator Patrick Leahy (D-VT), beat back an amendment that would have created an exception to the warrant requirement for certain crimes involving women and children. The debate on the amendment reflected the Committee’s understanding that emergency and other exceptions already in ECPA adequately ensure rapid law enforcement access to this information in appropriate circumstances. Sen. Mike Lee (R-UT), who joined all of the Democrats on the Committee in voting against the amendment, questioned the wisdom of putting some crimes under different investigative standards than other crimes.

In a remarkable turn of events, a controversial amendment that Senator Grassley (R-Iowa) filed in September to permit federal regulatory agencies to gain access to stored content without a warrant was not even offered. Instead, the Committee moved in the opposite direction, adopting an amendment designed to ensure that consumers and companies receive faster notice when such agencies demand information about them from communications service providers.

CDT supported a Grassley amendment that would have required the Government Accountability Office to conduct a study of disclosures of content and non-content to law enforcement made in the past five years, and to estimate the cost of extending the warrant requirement to more stored content. Too little is known about the extent to which law enforcement agencies are compelling communication service providers to disclose information about their customers, including the contents of their communications. That which is known, including that mobile phone providers received more than 1.3 million requests from law enforcement in 2011 is troubling. However, this amendment was not offered. Senator Grassley (like all Senators) has the authority to ask the GAO to conduct this study even without legislation.

The Committee also voted to adopt an amendment by Senator Feinstein (D-CA) that would ensure that video service providers obtain consent at least semi-annually to share consumers’ video rental selections. The base bill would have amended the Video Privacy Protection Act to permit companies to secure consent of indefinite duration.

This is an important step forward for ECPA reform. Bipartisan support for the bill has boosted its prospects for passage in the next session of Congress.

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