Reforming the Electronic
Communications Privacy Act (ECPA), designed to protect your online
information from unwarranted intrusion by the government, took another step
toward reality last Thursday. The Senate Judiciary Committee adopted an amendment to another
pending law that would include a portion of ECPA reform. The Committee did not
yet pass the amended bill out to the full Senate, instead allowing Senators
time to address a few concerns that have been expressed by government.
As we’ve mentioned a number of times in the past, ECPA was a forward-looking
law at the time it was written, in 1986. It foresaw that people would use still
nascent Internet to store information and ensured that that information would
not be less protected against government snooping than any other information
kept in the home. Unfortunately, technology has outpaced ECPA and the law,
which hasn’t been substantially updated since it was written. It is overdue for a
rewrite. One of the big problems with the law is that content that people put
online is not completely protected with a warrant.
Senator Leahy’s proposed amendment would do just that. Very simply, it would
amend ECPA to require that the government obtain a warrant before it can demand
the contents of anything that citizens place online. Emails would be completely
protected, as would private Facebook messages, documents in cloud storage, and
many other types of communications.
This change is vital for constitutional reasons, but it is also of great
importance to businesses for two big reasons. First is that Senator Leahy’s
proposal would create a clear, easy-to-understand rule that would replace a complex
and time-consuming series of rules in the current law. Clear rules in general
are easier for companies, particularly small companies and startups dealing
with lots of information, to implement. Second is that user trust is much
harder to earn when privacy cannot be assured. Privacy of information against
the government is associated in the public mind with a warrant, and ECPA today
does not provide it.
For those reasons, we commend Senator Leahy for bringing forward his proposal
and we call upon the Judiciary Committee and the full Senate to pass it with
all speed when they return.
