February 12th

By: Siyi Tian

Article by the Center for Democracy & Technology 4 February 2015: Congress Moves Forward on Protecting Americans’ Digital Privacy


The article, which appeared in the press & in the news section of the Center for Democracy & Technology, announced the introduction of bills in both the U.S. House and Senate to update the Electronic Communications Privacy Act (ECPA). The bills aim to update the ECPA of 1986 and to provide stronger privacy protections of information stored digitally in the cloud, including e-mails.


Representatives Kevin Yoder and Jared Polis introduced the House version of the bill, the Email Privacy Act, and currently have 228 co-sponsors. Senators Mike Lee and Patrick Leahy introduced the Senate version, the Electronic Communications Privacy Act Amendments Act.


Specifically, the new bills aim to update the Stored Communications Act, 18 U.S.C. §§2701-2711. Under the current 180-day rule, law enforcement can obtain content of e-mails 180-days or less with a subpoena, not a search warrant. Senators Patrick Leahy and Mike Lee write that the proposal they will soon introduce will add the new requirement for the government to obtain a search warrant, based on probable cause, before searching through the content of e-mails or other electronic communications stored with a service provider such as Google, Facebook, or Yahoo!. They reason that the same privacy protections should apply to online communications as phones and homes. Since the government is prohibited from tapping our phones or forcibly entering our homes to obtain private information without warrants, the government should also need a warrant for obtaining our online communications.


The ECPA has not been significantly updated since it was enacted in 1986. The purpose of the ECPA was to protect our privacy, but it was enacted in a time before people heavily relied on e-mails, mobile location, cloud computing, social networking, and the Internet in general. Technology innovations have since outpaced the ECPA, and digital communications often do not have the same privacy protections as paper communications. Advocates and companies have long called for an update to the 1986 law, and support for ECPA reform has increased rapidly following revelations about government surveillance.


It is true that an update to the ECPA is much needed and desired to correct the confusions arising from unclear and conflicting standards with regards to electronic content, such as when a document stored on a desktop computer is protected by the warrant requirement of the Fourth Amendment, but the same document stored on a service provider may not be subject to the warrant requirement by the ECPA. This article, along with the introduction of the amendment bills, is a good step into the direction of reform. However, many barriers remain before passing the reform. For example, the Securities and Exchange Commission demanded a special carve out for warrantless access to private communications that people entrust to Internet companies. It would require strong bipartisan support to successfully reform the ECPA to offer equal privacy protections for all private communications.