A White House report on big data issued today offers strong support for ECPA reform. This is big news, especially because the Obama Administration has for months remained silent on this long overdue, commonsense privacy fix that has near universal support.
The Electronic Communications Privacy Act (ECPA), which establishes rules for government access to email, text messages, and documents you store in the cloud, hasn’t been significantly updated since it became law in 1986. It says that law enforcement and regulatory agencies—including the FBI and IRS—can access people’s private digital communications without a warrant. Advocates and companies have long called for an update to the law to bring it into the 21st century and to ensure digital communications have the same protections against warrantless snooping as postal mail and documents stored in a desk drawer. With concerns about privacy at an all-time high following months of revelations about government surveillance, the push for ECPA reform has grown to unprecedented levels. In December, over 100,000 Americans signed a petition to the White House urging it to support real ECPA reform. The Senate Judiciary Committee has already passed a reform bill, and in the House, a bill to update ECPA known as the Email Privacy Act is now being cosponsored by 208 Representatives from both sides of the aisle, with new cosponsors joining each week.
The remaining barrier to passing ECPA reform has been the Securities and Exchange Commission’s (SEC) unreasonable demand for a special carve out that would allow it to have warrantless access to private communications that people entrust to Internet companies. Granting the SEC this warrantless snooping authority would pose grave threats to Americans’ privacy and could open the door for all other regulatory agencies, from the IRS to the local housing authority, to have the same powers to access communications without a warrant. Today’s report to the President embraces a very simple but crucial concept: Protections against government snooping should be the same for all private communications, whether online or off. Since there is a warrant requirement that protects the mail you entrust to the post office, with no carve out for the SEC to take a peek, there should also be a warrant requirement to protect the email you entrust to your ISP, with no carve out.
We now call on Congress to press forward and to pass genuine ECPA reform, and for the President to sign it into law without any carve outs or weakening amendments.