Legislators Continue to Drag Feet on ECPA Reform
By: Alex Schindler (Panel 4)
The way we transmit and store our information by electronic means has changed dramatically since 1986, so why hasn’t the Electronic Communications Privacy Act? As government surveillance powers and the technological means of exploiting them have expanded in three decades, an archaic loophole has remained, allowing law enforcement to subpoena or otherwise access “stored communications” older than 180 days with less than probable cause and a warrant. This remains law on the books even after the Sixth Circuit’s 2010 decision in United States v. Warshak granted email the same privacy protections due physical mail. As some would tell it, law enforcement agencies are to blame for the failure of Congress to fix this statutory oddity despite bipartisan support, popular pressure (at least since the Snowden revelations), and lobbying from civil rights advocates and technological industry leaders alike.
Bipartisan reform proposals have emerged in both the Senate and the House. Senators Patrick Leahy (D-Vermont) and Mike Lee (R-Utah) introduced the Electronic Communications Privacy Act Amendments Act (S. 356), which like its House counterpart the Email Privacy Act (H.R. 699, advocated by Reps. Jared Polis, D-Colorado, and Kevin Yoder, R-Kansas) closes the antiquated 180-day loophole. In December 2015, Slate reported that S. 356 had 25 cosponsors and H.R. 699 had 306—the latter constituting an easy House supermajority. Even the White House has been a voice in favor of increasing privacy protections in our digital ear: former Attorney General Eric Holder supported a warrant requirement for email searches in 2013, and President Obama’s “big data report” called for ECPA reform the following year.
Yet a vote on these ECPA reform bills has been consistently delayed for years. A markup and vote on the House bill is finally scheduled for April 13th, and the markup will no doubt reflect the concerns of the institutions who have presented the major counterweight to a seemingly popular position: law enforcement agencies. They are also responsible for the many delays.
In September, an SEC director testified before the Senate that its investigations would be hindered if it could not easily access personal content stored by online service providers. Five months earlier, the agency’s chairperson Mary Jo White testified that its investigations would be hindered if it could no longer use its administrative subpoena power to access content information (one which hinges on a “relevance” standard rather than the stricter probable cause requirement envisioned by the reform). And indeed, such has been the pattern for years: despite an unusual confluence of interests between powerful corporations and civil rights advocates, the advocates of robust law enforcement powers have delayed and hobbled ECPA reform.
In two weeks we shall see whether markup of the House bill carves out exceptions for civil agency investigations, as demanded by the SEC. Either way, privacy advocates will continue to oppose ad hoc distinctions in the law regarding expectations of privacy in email and other digital communications, or special exemptions for government agencies.