Senate Judiciary Committee Approves Leahy-Lee Electronic Communications Privacy Amendments Act

April 25, 2013

WASHINGTON – The Senate Judiciary Committee on Thursday favorably reported bipartisan legislation coauthored by Chairman Patrick Leahy (D-Vt.) and Sen. Mike Lee (R-Utah) to protect the privacy of emails, texts, social media posts and other electronic communications.  Both Senators hailed the Committee’s strong bipartisan support of the Electronic Communications Privacy Act Amendments Act of 2013, which updates one of the Nation’s most important digital privacy laws.

“All Americans -- regardless of political party affiliation or ideology -- care about their privacy rights,” said Leahy, an author of the original 1986 ECPA law. “That is why Senator Lee and I are joined in this effort by a broad coalition of more than 100 privacy, civil liberties, civil rights and tech industry leaders from across the political spectrum in supporting the privacy updates contained in this bill.”

"Reforming ECPA to protect legitimate privacy rights is not a partisan issue," said Senator Lee. "I'm pleased to be working closely with Chairman Leahy to help ensure that all Americans can be confident that the government may not access their email or other electronic communications without a warrant."

The Leahy-Lee Electronic Communications Privacy Act Amendments Act of 2013 establishes a search warrant requirement in order for the government to obtain the content of Americans’ emails and other electronic communications, when those communications are stored with a third-party service provider. The bill eliminates the outdated “180-day” rule that calls for different legal standards for the government to obtain email content depending upon the age of an email, and it requires that the government notify an individual whose electronic communications have been disclosed within 10 days  of obtaining a search warrant.  The Committee also on Thursday adopted two amendments to the bill; a technical amendment offered by Chairman Leahy to clarify the rule of construction, and an amendment from Sen. Chuck Grassley (R-Iowa) requiring the Comptroller General to conduct a review of the use of the law.

ECPA reform was the subject of two Committee hearings in recent years, and the Senate Judiciary Committee last November favorably reported legislation substantially similar to the Leahy-Lee bill.  In January, Leahy said that updating ECPA was his top privacy priority for the 113th Congress.  

“When I led the effort to write ECPA 27 years ago, email was a novelty,” said Leahy.  “Three decades later, we must update this law, so that the law protects our privacy rights and keeps pace with innovation and the challenging mission of law enforcement.  I look forward to the Senate now considering this important legislation.”

Satement of Senator Mike Lee (R-UT),

Senate Committee on the Judiciary,

On Committee Consideration of the

Electronic Commications Privacy Act Amendments Act of 2013

Updating the Electronic Communications Privacy Act is an essential step to protect Americans’ Fourth Amendment rights.  Chairman Leahy led the original effort to pass ECPA back in 1986, and I am very happy to join with him here to provide these essential updates.  For centuries, Americans sent some of their most personal correspondence to each other through the U.S. Postal Service.  It is well settled that government agencies should not have warrantless access to such private correspondence. 

Modern technology has evolved to the point where third party storage and “cloud computing” are now the norm.  Many people use Google, Yahoo, and other remote services to host and coordinate electronic communications.   Due to the conflicts of older legislation and modern technology, private email correspondence over 180 days old is not afforded full Fourth Amendment protection.  Today, we finally move to change that.

Even the Department of Justice sees the need for this.  In its March 19, 2013 testimony before the House Judiciary Committee, the Acting Assistant Attorney General for the Office of Legal Policy said that there is “no principled basis to treat email less than 180 days old differently than email more than 180 days old.”  Later on, referring to a theory that emails may lose warrant protection as soon as they are opened, the Department added, “Similarly, it makes sense that the statute not accord lesser protection to opened emails than it gives to emails that are unopened.”

Our bill prohibits an electronic communications or remote computing service provider—like Gmail or Facebook or Twitter—from voluntarily disclosing the contents of customer emails or other communications.  It eliminates the ambiguous and outdated “180 day rule” that some government agencies believe grants them warrantless access to the content of older emails.  Instead, all requests for the content of electronic communications would require a search warrant based on probable cause.  And law enforcement agencies would be required to notify, within 10 days, any persons whose email accounts are searched, subject to standard exceptions.

The Leahy-Lee ECPA Amendments Act of 2013 is truly bipartisan in nature.  It enjoys broad support from the technology industry, privacy advocates, constitutional scholars, and policy groups on both ends of the ideological spectrum.  I’m grateful to Chairman Leahy’s leadership on this issue and I urge my colleagues on both sides of the aisle to support this legislation.

S.607 Electronic Communication Privacy Amendments Act