Feb 04 2015
Mr. President, the Electronic Communications Protection Act was first enacted in 1986.
It was, and still is, an important law with an increasingly important objective: to ensure that government agencies respect the Fourth Amendment in accessing an individual’s electronic communications.
But Mr. President, in the nearly three decades since ECPA became law, technology has advanced rapidly and far beyond the capacity of the law to keep up.
The prevalence of email and the low cost of electronic data storage have made what were once robust protections insufficient to ensure that citizens’ rights are adequately protected.
There is no reason we should still be operating under a law written in the analog age when we are living in a digital world.
That’s why Senator Leahy and I have come together to craft this piece of legislation, which will modernize ECPA and bring our constitutional protections against warrantless search into harmony with the technological realities of the 21st century.
The Lee-Leahy ECPA Amendments Act of 2015 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It eliminates the ambiguous and outdated “180 day rule” that some government agencies believe grants them warrantless access to the content of older emails.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 some logical exceptions.
This legislation is also carefully crafted so that it does not impede the ability of law enforcement agencies to conduct investigations. Routing information, customer names, session time records, and other non-content information will still be available through subpoenas.
The bill also contains a rule of construction allowing government access to internal corporate email when the communications are to or from an officer, agent, or employee of a company that is acting as the electronic communications service provider for its own internal email system.
I am pleased to say that our bill enjoys broad support from the technology industry, privacy advocates, constitutional scholars, and policy groups on both ends of the ideological spectrum.
The Leahy-Lee ECPA Amendments Act of 2015 is truly bipartisan in nature. The Senate bill has 6 additional cosponsors: Republican Senators Cornyn, Moran, and Gardner; and Democratic Senators Shaheen, Merkley, and Blumenthal.
The House version of ECPA has 228 additional cosponsors – a critical majority.By working together, as a Democrat from Vermont and a Republican from Utah, we hope that all senators will join us to pass this meaningful and bipartisan legislation that benefits all Americans. Congress should pass ECPA reform this year, and President Obama should sign these important privacy reforms into law.