Senate Judiciary Takes Encouraging Step Toward ECPA Reform

September 25, 2012
Ross Schulman

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.

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