Major Tech Companies Take Sides in Battle Over Update To ECPA

By: Matthew Shore

Panel 9


From industry to civil rights groups, many sides are now lining up against the government in the fight to bolster the Electronic Communications Privacy Act. Google, Twitter and other tech companies recently sent a letter to House Judiciary Committee Chairman Robert Goodlatte and Ranking Member John Conyers, asking that Congress give consideration to the Email Privacy Act. The act, which would be an update to the Electronic Communications Privacy Act, “would make it clear that, excepting emergencies, the government needs a warrant to compel a service provider to disclose the content of emails, texts or other private user material stored in the cloud by the service provider.”

In the Sixth Circuit opinion United States v. Warshak, Judge Boggs stated that “[t]he government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.” This seems to line up with the goal of the Email Privacy Act. However, supporters note that there have also been conflicting rulings, which has left both the government and service providers in an uncertain position.

While service providers may be looking for guidance in how to act, and protection of their customers, the government’s interest is in protecting its citizens. Advocates for digital privacy, in pushing for the Act, can point to the extent of our lives that now exist in our emails, texts and information in the cloud. Government actors have an argument that this is the very reason that the government needs the ability to access this information easily. Much of the planning by terrorists occurs outside of the old methods of surveillance and the government must be able to act quickly, if need be.