ECPA reform will protect privacy and meet law enforcement needs

In our era of partisan gridlock, it is encouraging to see there are still occasions when Republicans and Democrats broadly agree on the solution to a problem. Few problems in recent years have drawn more extensive bipartisan support than an obsolete law that threatens the privacy of every American family. Yet despite the best of intentions to protect our homes and cities, some law enforcement officials are putting up undue resistance to important legislation that would safeguard our Fourth Amendment rights.

The Electronic Communications Privacy Act (ECPA) was written in 1986 to protect the privacy of the few people who used email at the time. The Internet existed but the World Wide Web hadn’t been invented. Hardly anyone had home computers. Service providers offered limited and expensive storage. People who communicated by email rarely had a reason to keep an email after it was sent and read. So lawmakers thought it sufficient to limit privacy protections to emails that were more than 180 days old. Anything left with a service provider longer than that had been forgotten and abandoned.

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Things change, of course, and in the information age they change faster than ever. Today we store online indefinitely all types of personal communication and information. Emails, financial records, work documents, schedules, love letters, any content that can be digitized can be stored in the cloud for months, years and decades. And any of it kept for more than six months is subject to inspection by government agents equipped only with a subpoena rather than a search warrant.

ECPA clearly infringes the Fourth Amendment right of Americans “to be secure in their persons, houses, papers and effects, against unreasonable searches.” The government cannot examine information we keep in a file cabinet without a search warrant. Why shouldn’t the same protection apply to records we keep online? Common sense and basic fairness require that ECPA be revised to account for the technological advances of the last thirty years.

That’s why a version of the Email Privacy Act passed the House with an overwhelming 419-0 vote at the end of April. The bill requires a warrant for content stored with a third party for any length of time. If government agents want to inspect our email, they will have to ask a judge for a search warrant just as they would if they wanted to search our home.

The Senate Judiciary Committee has yet to mark up ECPA reform. Given its widespread support in the House and companion legislation’s 28 co-sponsors in the Senate, we hope the committee will move swiftly to report out the bill. Efforts by law enforcement officials to preserve their ability to bypass a warrant should not hold up this process, because the legislation’s provisions actually solve their well-intentioned concerns.

They have two chief complaints about ECPA reform. The first is that it doesn’t have a wide enough exception for emergencies. But ECPA’s existing exception allows warrantless access to data in situations where lives or serious physical harm are threatened, and the exception was kept intact in the recently-passed Email Privacy Act. What critics propose is to expand its scope to situations that don’t threaten grave danger. That’s an abridgement of civil liberties we wouldn’t tolerate when it came to the privacy of our telephone communications. We shouldn’t permit it elsewhere.

Nor should we weaken reform in response to criticism of the requirement for law enforcement officials to notify you when they obtain a warrant to search data stored online. Again, an exception in ECPA was retained in the Email Privacy Act that permits withholding notice when lives or physical harm are threatened or when it might result in a flight from prosecution or destruction of evidence. To withhold notice even when it doesn’t entail those risks deprives the subject of their constitutional right to challenge the validity of the warrant.

In sum, all exceptions to Fourth Amendment protections previously allowed were included in the proposed ECPA reforms. Government’s argument for greater intrusion in the private lives of Americans is no more reasonable today than it was thirty years ago. Americans of all political views have come together to insist we fix this unintended threat to our privacy. The Senate Judiciary Committee should resist any attempts by law enforcement to ignore this rare political consensus by increasing its power at the expense of our liberty.

Stiven is a retired U.S. magistrate judge for the Southern District of California.