Catalina Carmona
For quite some time now, both industry and privacy advocates have pointed out the need of reforming the Electronic Communications Privacy Act (ECPA). The main argument is that the act, which was passed in 1986, cannot adequately respond to new technologies, and leaves important loopholes for privacy to be disrupted.
For example, ECPA only requests law enforcement authorities to have a warrant when searching through email that has not been opened, and is less than 180 days old. For older emails, no warrant is required. In times in which people no longer store their emails in their hard drives, but on the cloud or a server, this poses serious threats to privacy.
In November 2012, the Senate Judiciary Committee approved a reform to ECPA, which would now require law enforcement authorities to obtain a warrant in all cases when searching through email.
The Committee approved this bill despite strong opposition from enforcement agencies. In fact, just a few days before this proposal was approved, Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, who also took part in the drafting of the original version of ECPA, was ready to go through with a version that would allow several agencies –including the Securities and Exchange Commission and the Federal Communications Commission– to access email without a warrant. The FBI and Homeland Security would have even greater powers under the Act, as they could even fully access online accounts without a judge authorization, or notification to the owner of the account.
The online community has enthusiastically received the reforms to ECPA, and now awaits the final vote on the Senate, which is expected to happen some time this year.
(See, for example: https://www.cdt.org/pr_statement/senate-committee-takes-historic-step-privacy and https://www.netnanny.com/blog/the-ecpa-and-your-online-privacy/ )
But the bill will still need to overcome the resistance from more conservative groups, who believe that public safety should have a stronger stance when analyzing online privacy.