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Sen. Leahy introduces update to digital privacy law
Senate Judiciary Chairman Patrick Leahy (D-Vt.) unveiled an update to the Electronic Communications Privacy Act on Tuesday that would require the government to obtain a warrant before accessing an individual's email, digital communications or geolocation information.
Leahy had previously indicated he planned on releasing an update to the law he helped write in 1986, arguing it has failed to keep up with changes in digital communications. The law's protections are geared more towards networks and computing resources that are physically accessible, while today data is increasingly stored and accessed remotely.
"When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy," Leahy said. "Updating this law to reflect the realities of our time is essential to ensuring that our Federal privacy laws keep pace with new technologies and the new threats to our security."
The ECPA Amendments Act of 2011 prohibits wireless and remote services providers from voluntarily disclosing the contents of user's email or other electronic communications to the government. It requires a search warrant based on probable cause to access all emails, digital messages, remotely stored and geolocation data.
"Under the current law, a single email could be subject to as many a four different levels of privacy protections, depending upon where it is stored and when it was sent," Leahy said.
"The bill gets rid of the so-called '180-day rule' and replaces this confusing mosaic with one clear legal standard for the protection of the content of emails and other electronic communications."
The bill would require the government to notify the individual whose account was disclosed within three days and provide them with a copy of the warrant, but allows law enforcement to seek a court order to delay notice for up to 90 days should the disclosure imperil an investigation or national security.
More controversial is the new exception to the law's nondisclosure requirements that will allow providers to "voluntarily disclose content to the government that is pertinent to addressing a cyberattack."
The American Civil Liberties Union expressed concern about "an exemption to ECPA that would allow law enforcement broad powers to gather electronic records under the guise of cybersecurity."
“Clearly, an electronic privacy law that was written the year ‘Top Gun’ was in theaters is in desperate need of an update," said Laura Murphy, director of the ACLU's Washington legislative office.
"Technology has vastly outpaced our privacy rights, and this bill is a good first step toward rectifying that disparity. It should be common sense that the information we store and share online should have the same level of Fourth Amendment protections from government intrusion as our offline ‘papers and effects.’ "
Murphy said she hopes Congress will add protections to the bill to further strengthen ECPA, such as stricter reporting requirements that would allow the public and lawmakers to better understand how surveillance powers are being used.
Leahy's bill overlaps in many areas with several other digital privacy bills that have been introduced in recent months, most notably the bipartisan Consumer Privacy Bill of Rights introduced by Sens. John Kerry (D-Mass.) and John McCain (R-Ariz.).
Leahy's bill, however, is more focused on limiting law enforcement's warrantless access to private digital communications than most of the more prominent recent efforts. The Obama administration has consistently pushed to expand the amount of authority law enforcement agents have to pursue criminals online.
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