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Will This Be the Congress to Finally Pass ECPA Reform?

Last Updated on May 19, 2020, 9:58 am ET

Today, July 27, 2017, Senators Lee (R-UT) and Leahy (D-VT) introduced the ECPA Modernization Act of 2017, a bill to reform the Electronic Communications Privacy Act (ECPA). ECPA is a law from 1986 governing privacy for online communications and, not surprisingly, has long been in need of reform. A law written more than thirty years ago clearly did not conceive of the modern digital age.

Congress has seriously considered reform to rectify the absurdities of the 1986 law that denies individuals a reasonable expectation of privacy for the content of their online communications. Earlier this year, in January 2017, Congressmen Yoder (R-KS) and Polis (D-CO) reintroduced the House version of ECPA reform, the Email Privacy Act (H.R. 387), a bill that unanimously passed the House of Representatives in 2016.

ECPA was written in an era in which few individuals owned computers, most did not use e-mail, social media services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It therefore 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 communications.

The ECPA Modernization Act of 2017 would rectify this absurdity and restore Fourth Amendment protections to the digital world, requiring a warrant for the content of online communications just as a warrant would be required for a copy of a document stored in a file cabinet. It would also ensure that the government provides notification to users after it has received content after a warrant has been executed. These reforms are greatly needed in our modern era where everyday communications take place online.

ARL applauds Senators Lee (R-UT) and Leahy (D-VT) for their leadership in promoting much needed ECPA reform in the Senate and urges Congress to quickly pass these bills.