Senators Mike Lee (R-UT) and Pat Leahy (D-VT) introduced the ECPA Modernization Act, as well as the Email Privacy Act, two bills meant to update and reform the three-decades-old Electronic Privacy Communications Act.
Outdated Privacy Laws In The Digital Age
The Electronic Privacy Communications Act passed in 1986, a time when the internet itself was just being renamed from “ARPANET.” Among other outdated ideas, the law included a provision that said email was considered abandoned after six months and the government could retrieve it at will.
Email services didn't start offering gigabytes of storage for email until about a decade ago. This move essentially meant that people no longer had to delete their emails to make room for more. However, it also exposed everyone to having their email retrieved by the government without a warrant.
This flaw in the law represented an increasingly large privacy issue as more and more people started using email to communicate. Whether people talk via snail mail, telephone, email, or chat, they likely want those communications to remain private. The medium is irrelevant -- it’s the content that ultimately matters.
Even if the government has a public safety need to access some of that content to catch criminals, people still expect law enforcement to first make their case for that request before a judge, and not to just be able to look at anyone’s communications at will.
From this point of view, it makes no sense for digital communications to be any less protected than other means of communication, for no other reason than the fact that it’s easier for the government to analyze a million emails at once than it would be to analyze a million physical letters. How practical or impractical a type of surveillance is should have no bearing on citizens’ privacy rights.
Email Privacy Act
The House of Representatives passed the Email Privacy Act unanimously, twice in a row, in a feat that’s not often accomplished in the United States’ highly partisan political environment. The representatives from both parties seem to have realized that in today’s world email has replaced snail mail, and it’s common sense for it to get just as many privacy protections as snail mail has.
The Email Privacy Act would require the government to go before a judge to ask for a search warrant based on probable cause whenever it seeks to obtain not just emails, but also photos and texts held by technology companies.
“The Electronic Communications Protect Act was written 30 years ago before the widespread use of email,” Sen. Lee said. “Americans now expect that their email communications will have the same privacy protections as their written communications. This bill would provide that common sense protection,” he added.
ECPA Modernization Act
The ECPA Modernization Act seems to have many of the same goals as the Email Privacy Act, but it adds a few improvements, including:
- requiring a warrant for geo-location data requests
- requiring specific and articulable facts for why a gag order is necessary
- requiring specific and articulable facts for why cell site simulator data was “material” to the investigation
The proposed bill would make clear that the Fourth Amendment requires law enforcement to get a warrant in order to access emails, location data, and other sensitive information. It would also ensure that the government complies with its obligation to notify individuals when their location and content information is requested. We urge the Congress to pass this important bill.
The ECPA Modernization Act doesn’t have any impact on the Wiretap Act and FISA, so any surveillance methods allowed by those two bills will still be available to law enforcement if the ECPA Modernization Act passes. FISA will expire by the end of the year, which could be a good opportunity to fix some of its biggest privacy issues, too.