On September 8, 2014, the Association of Research Libraries joined a broad coalition of seventy-six technology companies as well as privacy and public interest organizations in sending a letter to Senate Majority Leader Harry Reid (D-NV) and House Majority Leader Kevin McCarthy (R-CA) urging reform of the Electronic Communications Privacy Act (ECPA). Both the Senate and House have considered bills to update ECPA and ensure that Fourth Amendment privacy protections extend to the online communications. The House version of ECPA reform, H.R. 1852 reached a milestone of 218 co-sponsors on June 17, 2014 representing a majority of the House and the bill enjoys broad bipartisan support. Since that date, additional co-sponsors have been added to H.R. 1852 and more than 260 Members have joined in their support of this bill. The Senate bill, S. 607, also enjoys bipartisan support and was introduced by Senators Leahy (D-VT) and Lee (R-UT) and was approved by the Senate Judiciary Committee in 2013.
ECPA reform is necessary to ensure that the Fourth Amendment guarantees of privacy apply equally to digital information as it does to physical property. ECPA, enacted in 1986, has not kept pace with evolving technologies and allows government agencies to access online communications that are older than 180 days without obtaining a warrant, thereby affording digital information, such as that which is stored in the cloud, less protections than data stored locally in a home or office. The bills considered by Congress would require warrant-for-content, a standard that the U.S. Department of Justice already follows. Civil regulatory agencies want an exception, however, allowing the collection of content directly from third-party service providers. The letter states clear opposition to a “carve-out of regulatory agencies or other rules that would treat private data differently depending on the type of technology used to store it.”
As libraries and universities increasingly used cloud-based services and more communications take place online, ensuring that the Fourth Amendment extends to information in the digital world becomes critical. ECPA reform would avoid the current absurdity that currently affords online communications and information less protection than physical documents.