One week after the release of Apple’s iPhone 6s, few Americans realize a law written two years after Steve Jobs gave us the first Macintosh computer is governing our digital privacy rights. Most are also not aware the law allows government officials to seize emails, documents, and other online communications without prior consideration from a judge.
Clearly, this approach is far outdated and threatens every American’s privacy. It is past time for Congress to act.
When Congress passed the Electronic Communications Privacy Act (ECPA) in 1986, the intent was to protect the privacy of online communications. It was a good approach for the time when few Americans had even heard of email, but no one could have imagined how the Internet would transform the way Americans communicate and exchange information. There was no World Wide Web, no cloud computing, and no social media. But as technology developed and Americans began to share more of their lives online, the law did not develop with it.
Under the ECPA signed into law by President Reagan, the government has the ability to search through any digital communications stored on a third-party server without a warrant, as long as they are more than 180 days old. While perhaps reasonable in 1986, this loophole now amounts to giving authorities unfettered access to virtually all digital communication older than six months.
This vulnerability is why we have worked together, Republicans and Democrats from across the country, to introduce legislation that would bring ECPA in line with the realities of the digital age. The ECPA Amendments Act in the Senate and Email Privacy Act in the House would require government agencies to get a warrant from a judge before gaining access to our private, proprietary communications and records. The government cannot open our letters or enter our homes without a warrant. Under our legislation, we are asking for the law to protect online communications the same way. It is that simple.
Our commonsense bills have garnered tremendous support both inside and outside the halls of Congress. Nearly 300 House members and 24 senators are collectively supporting our bills. In the House, the legislation has more cosponsors than any other bill that has not received a floor vote. More than 100,000 Americans across the country have signed a petition urging the White House to support ECPA reform. Privacy advocates spanning the entire political spectrum, civil libertarians, former prosecutors, Fortune 500 companies, small businesses, and start-ups are backing our approach. Few bills in Congress can boast such a broad range of support.
Unfortunately, some civil agencies like the Securities and Exchange Commission (SEC) are holding up reform. They want to expand their power at the cost of our liberty by being exempt from updated rules. No government agency should be exempt from following the principles enshrined in the Constitution, and we should all be working together to ensure that our laws protect every American’s right to privacy, without exception. We can have a law that both allows agencies to do their work and protects the privacy rights of the American people.
There is an opportunity to make progress on reform this week in the Senate. On Wednesday, the Senate Judiciary Committee will hold a hearing on ECPA featuring a number of witnesses who will discuss the importance of bringing the law up to date with the 21st century.
In this era of partisan gridlock, Americans are understandably frustrated with Congress. But ECPA reform is an issue that transcends party lines. We come from a variety of backgrounds and political perspectives. While we may not agree on everything, modernizing ECPA is an issue that has brought us together to fight on behalf of all Americans to strengthen privacy protections online.
All Americans deserve to have their online communications protected, which is why now is the time for Congress to pass the ECPA Amendments Act and Email Privacy Act. There should be no difference in the way the government accesses online and offline communications.
Lee is Utah’s junior senator, serving since 2011. He sits on the Armed Services; the Energy and Natural Resources; and the Judiciary committees. Leahy is Vermont’s senior senator, serving since.1975 He sits on the Agriculture, Nutrition and Forestry; the Appropriations; the Judiciary; and the Rules and Administration committees. Yoder has represented Kansas’ 3rd Congressional District since 2011. He sits on the Appropriations Committee. Polis has represented Colorado’s 2nd Congressional District since 2009. He sits on the Education and the Workforce; the Natural Resources; and the Rules committees.