Today, September 16, 2015, the Senate Judiciary Committee will host a hearing on “Reforming the Electronic Communications Privacy Act.” The Electronic Communications Privacy Act (ECPA) was passed in 1986 and is badly in need of reform. The law has not kept pace with evolving technologies and denies important privacy protections for electronic communications, allowing agencies to access documents or communications stored online that are older than 180 days without a warrant. This outdated law has led to an absurdity that affords greater protection to hard copy documents than digital communication.
As libraries and universities move services into the cloud and more communications take place online, it is critical that Fourth Amendment protect information long considered to be private—including what individuals are reading or researching, and to whom they are talking—even in the digital world. The growth of the Internet has launched new forms of communications and changed the way individuals interact since ECPA’s enactment in 1986. ECPA reform would require warrant for content, extending Fourth Amendment protections to online documents.
The ECPA reform bill in the House of Representatives, known as the Email Privacy Act and introduced by Representatives Yoder (R-KS) and Polis (D-CO) currently has 292 co-sponsors, representing an overwhelming majority. The Senate version, known as the Electronic Communications Privacy Act Amendments Act also has bipartisan support, was introduced by Senators Lee (R-UT) and Leahy (D-VT) and currently has 23 co-sponsors. Today, the full Senate Judiciary Committee will consider what reforms to ECPA are necessary, with two panels. The first panel will consist of government witnesses from the Department of Justice, Securities and Exchange Commission and the Federal Trade Commission. The second panel has four witnesses representing the Tennessee Bureau of Investigation, Google, the Center for Democracy and Technology and BSA | The Software Alliance.
Twenty-nine years after ECPA’s passage, reform is long overdue. Congress should bring these bills to a vote and pass ECPA reform to ensure that 4th Amendment rights are preserved in today’s digital world. Hopefully, today’s Senate hearing is a step toward moving ECPA reform forward.