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Civil Agencies, Law Enforcement Officials Threaten Meaningful ECPA Reform

Last Updated on April 6, 2021, 12:41 pm ET

On May 24, 2016, ARL joined a coalition of civil society organizations, companies and trade associations in a letter to Senate Judiciary Committee Chairman Grassley and Ranking Member Leahy supporting the Email Privacy Act (H.R. 699) as passed unanimously by the House of Representatives on April 26, 2016.  While the House-passed bill did not make all necessary reforms to the Electronic Communications Privacy Act (ECPA), it represents a big step forward by imposing a warrant-for-content rule.  Importantly, the H.R. 699 did not include a civil agency carveout, ensuring that civil agencies do not have warrantless access to online communications such as e-mails or documents stored in the cloud.

The Electronic Communications Privacy Act (ECPA) is a law from 1986 governing privacy for online communications and has long been in need of reform. ECPA was written in an era in which few individuals owned computers, most did not use e-mail, services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It reflects a poor understanding of the digital age and has clearly not kept pace with evolving technologies. ECPA allows the government to seize online documents and communications older than 180 days without a warrant, leading to an absurdity that grants greater protection to hard copy documents than to digital communication.  Essentially, ECPA reform seeks to ensure that the 4th Amendment applies equally to the digital age as it does to the analog world, requiring a warrant for the content of documents and communications.

Civil agencies, primarily the Securities and Exchange Commission (SEC), have repeatedly sought an exemption from the ECPA reforms and continue to do so as the Senate Judiciary Committee considers a vote.  These agencies would like to compel third-party providers to disclose the content of personal communications without a warrant, increasing their power beyond the existing tools they have at their disposal such as subpoenas.   Such an exemption threatens the reasonable expectation of privacy.

In addition to civil agencies seeking carveouts, law enforcement officials would like to broaden the emergency exceptions language in the ECPA reform bill despite the fact that current law already permits service providers to release information where there is an emergency involving the danger of death or serious physical injury.  Expansion of existing law in this area could be subject to abuse by government and law enforcement agencies who may try to overreach to access data.

ECPA is in serious need of reform and the Email Privacy Act passed last month by the House of Representatives–without modification or amendment–represents the appropriate vehicle to move reform forward.