Zoe Lofgren Tries For ECPA Reform Once Again

IT Management

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Alongside the much needed Aaron's Law, Internet superhero Rep. Zoe Lofgren has reintroduced her ECPA amendment into the House for consideration. The new bill keeps many of the protections from last year's ECPA 2.0 Act, but features a few important additions.

Lofgren announced today that she has introduced the Online Communications and Geolocation Protection Act in the House. As its name implies, this new bill goes beyond what the original ECPA 2.0 Act hoped to accomplish. For one, the fight is no longer restricted to law enforcement snooping through your emails without a warrant as Lofgren is also targeting law enforcement's ability to obtain smartphone location data without a warrant as well.

"Fourth Amendment protections don't stop at the Internet. Americans expect Constitutional protections to extend to their online communications and location data," Rep. Lofgren said. "Establishing a warrant standard for government access to cloud and geolocation provides Americans with the privacy protections they expect, and would enable service providers to foster greater trust with their users and international trading partners."

Here's a breakdown of the core tenets of this new bill:

  • Require the government to obtain a warrant to access to wire or electronic communications content;
  • Require the government to obtain a warrant to intercept or force service providers to disclose geolocation data;
  • Preserve exceptions for emergency situations, foreign intelligence surveillance, individual consent, public information, and emergency assistance;
  • Prohibit service providers from disclosing a user's geolocation information to the government in the absence of a warrant or exception;
  • Prohibit the use of unlawfully obtained geolocation information as evidence;
  • Provide for administrative discipline and a civil cause of action if geolocation information is unlawfully intercepted or disclosed.
  • One of the things keeping the ECPA 2.0 Act from getting anywhere was that Lofgren didn't have any co-sponsors. That all changes with this bill as she has managed to rope in Texas Rep. Ted Poe and Washington Rep. Suzan DelBene as co-sponsors. Both seem genuinely excited to be supporting the bill as well:

    "In the past decade, advances in technology and the Internet have dramatically changed the way we communicate, live and work – and in this constantly evolving world, Congress must be a good steward of policy to ensure our laws keep up," said Rep. DelBene. "When current law affords more protections for a letter in a filing cabinet than an email on a server, it's clear our policies are outdated. This bill will update privacy protections for consumers while resolving competing interests between innovation, international competitiveness, and public safety."

    Poe wins the best statement of the day award, however, for rightly pointing out that the Constitution does not change in the face of new technology:

    "As technology continues to evolve and improve, Congress must ensure that the Fourth Amendment rights of our citizens are protected. We live in a much different world than 1986. It's time for Washington to modernize this outdated legislation to catch up with the times. Technology may change, but the Constitution does not."

    The addition of geolocation protection should also help Lofgren get a few friends in the Senate. Sen. Al Franken is probably going to introduce his twice defeated Location Privacy Protection Act into the Senate again, and most of Lofgren's bill would fit snugly with Franken's legislation. As for the email protections in Lofgren's bill, it might be able to buddy up with Rep. Bob Goodlatte's proposed legislation that seeks to modernize the ECPA.

    I wouldn't suggest you get too excited though. Law enforcement agencies have fought against any and all ECPA reform over the past few years claiming that it would make their jobs harder. It may very well do that, but Americans have an expectation of privacy the extends into the digital realm. The law needs to be updated to keep up with this expectation.