A broad coalition of 70 technology companies, trade associations and privacy groups joined The Constitution Project in urging quick consideration of warrant-for-content legislation that would provide stronger protection to sensitive personal and proprietary online communications. In similar letters delivered to leaders of the House and Senate Judiciary Committees on January 22, the groups wrote “there is an extraordinary consensus around ECPA reform – one unmatched by any other technology and privacy issue.”
Successful passage of ECPA reform would show that Congress can move swiftly on crucial, widely-supported legislation, the letters said, while failure to act would demonstrate “privacy protections are lacking in law enforcement access to user information, and that constitutional values are imperiled in a digital world.”
The letter indicated the groups expect the legislation – the ECPA Amendments Act, sponsored by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), and the Email Privacy Act, sponsored by Reps. Kevin Yoder (R-Ks.) and Jared Polis (D-Colo.) – to be introduced in the coming weeks. It would update the Electronic Communications Privacy Act, which currently allows law enforcement agencies to access without a warrant emails that have been stored for more than 180 days and information stored “in the cloud.” As a result, emails and online documents don’t receive the same Fourth Amendment protections as physical letters sent through the Post Office and stored in filing cabinets, which require a warrant to access.
Similar legislation was considered in the last Congress, but did not pass. House Judiciary Committee Chair Robert Goodlatte (R-Va.) has announced his support for ECPA reform. The Senate Judiciary Committee passed a version of the legislation in 2013 and officials in the White House also support updating the law.
TCP backs other changes to ECPA as well. In 2011, the Liberty and Security Committee issued a report urging Congress to amend the law to require the government to obtain a warrant based on probable cause in order to access GPS and cell phone location information.
On January 22, Sen. Ron Wyden (D-Ore.) and Rep. Jason Chaffetz (R-Utah) reintroduced their Geolocation Privacy and Surveillance Act, which would require a warrant before police could obtain location information from an outside party — such as a phone company — or through the use of Stingray devices that track cellphone locations by mimicking phone towers. The legislation also seeks to create criminal penalties on those who track someone’s location without permission. Sen. Mark Kirk (R-Ill.) and Reps. Peter Welch (D-Vt.) and John Conyers (D-Mich.) are cosponsoring the bill.
ECPA was enacted in 1986, and has not been modified since to keep pace with people’s use of rapidly evolving digital technologies.