Senator Patrick Leahy (D-VT) and Senator Mike Lee (R-UT) today introduced a bill that would reform the Electronic Communications Privacy Act (ECPA). This Senate “Dream Team” will give ECPA reform a strong boost: Leahy, the Chairman of the Senate Judiciary Committee and original author of the 1986 ECPA, is joining forces with Mike Lee, a Tea Party favorite, and a strong voice for Constitutional rights when the Committee marked up a nearly identical bill last year.
The Leahy-Lee bill would amend ECPA to require government officials to obtain a warrant in order to require ISPs or other online service providers to disclose the private communications of their users (except, of course, in emergency cases). This would include personal or proprietary documents stored with providers of “cloud” services (the increasingly popular services that allow companies, non-profits and individuals to edit documents from any location). Under ECPA as currently written, the warrant requirement applies only to email 180 days old or less and does not apply at all to documents stored in the cloud. Simply put, the goal of the Leahy-Lee legislation is to ensure that the warrant standard of the U.S. Constitution, which now applies to letters you send in the US Mail, is extended to your email.
Importantly, the legislation would maintain existing emergency exceptions to the warrant requirement so law enforcement can act quickly in those occasions when there is no time to go to a judge. It also leaves in place the provisions of current law that require providers – without a warrant – to affirmatively report child pornography and other child abuse of which they become aware.
Speaking of “Dream Teams,” another one was launched just yesterday: a new coalition called Digital 4th. This brings together the American Civil Liberties Union and Americans for Tax Reform, as well as the Center for Democracy & Technology, in support of warrant-for-content legislation like the Leahy-Lee bill. Here’s how ATR’s Grover Norquist and ACLU’s Laura Murphy described the current state of affairs in a recent op-ed:
In the age of the Internet, your privacy is not Fourth Amendment safe. Government agents cannot tap your phone without a warrant issued by a judge based on some indication you are involved in wrongdoing, but the government claims the authority to read your emails without a warrant. The government can’t open your postal mail or seize papers from your home without a warrant, but it says it can read any private and sensitive documents you’ve stored in the Internet “cloud.”
In addition to supporting warrant for content, Digital 4th also calls for warrants for cell phone information that can be used to track a person’s location over time – a from of surveillance so intrusive and so revealing of a person’s activities and associations that it also merits the protection of the Constitution’s warrant standard. Digital 4th will add lobbying muscle to ECPA reforms championed by a broad coalition known as Digital Due Process.
Introduction of the Leahy-Lee bill and the launch of Digital 4th show just how broad is the support for ECPA reform. Congress should not let this opportunity go to waste. It’s time to update ECPA.