ECPA, or the Electronic Communications Privacy Act, has long been in need of an update. The Senate tried last year, but ran out of time. Now it's a priority and it will hopefully get the time it deserves this week.
The Hill reports that the Senate Judiciary Committee plans to mark-up Sen. Patrick Leahy's ECPA amendment on Thursday morning. S.607 would require law enforcement to obtain a warrant when requesting emails as part of an investigation. The current law under ECPA requires a warrant only if the email is less than 180 days old. An older email, or one that's already been opened, only requires a subpoena under current law.
Sen. Leahy issued the following statement today in regards to the mark-up:
“Like many Americans, I am concerned about the growing and unwelcome intrusions into our private lives in cyberspace. I have long believed that our government should obtain a search warrant -- issued by a court -- before gaining access to our email and other private communications. This week the Senate Judiciary Committee will begin consideration of legislation that I authored with Republican Senator Mike Lee to reform the Electronic Communications Privacy Act to make sure that this occurs, and that the overall privacy protections for our email and other electronic communications are strengthened. Safeguarding Americans’ privacy rights is not a Democratic issue or a Republican issue -- it is something that is important to all Americans, regardless of political party or ideology. I hope that all members of Congress share this view and will support this timely and significant legislation that upholds Americans’ privacy rights.”
Sen. Leahy's proposed ECPA amendment was introduced in late March, but one event in particular may have forced his hand to push ECPA reform faster than he may have planned. The ACLU obtained a number of documents from the IRS that suggested the agency obtained emails without a warrant, and said that Internet users "do not have a reasonable expectation of privacy."
In response, Rep. Charles Boustany sent a letter to the IRS asking the agency to explain its email policy. It's highly unlikely that the agency would answer all of the questions posed by Rep. Boustany, but it did say that it "treats taxpayers with respect" and "does not use emails to target taxpayers."
Sen. Leahy's bill is a great first step to updating the decades old ECPA, but a House vote this week could be a different first step in making an updated ECPA a moot point. CISPA, a bill that would let companies share you private information with the government, will go to the House floor for a vote this week. If it somehow makes its way into law, it would allow companies to share your emails and much more with the government while enjoying total immunity in the case the government uses that information for anything illegal. Fortunately, the White House has serious reservations, but it didn't go so far as to issue a veto threat.
We'll keep following both ECPA and CISPA as they make their way through the legislature over the coming months. We can only hope that the former makes its way all way through, and the latter is treated to the same ignoble death its predecessor was dealt last year.