Caveat Vendor

Online Privacy Reform: More Talk & Promises of Action

March 07, 2013

Mary-Elizabeth Hadley

House Judiciary Committee Chairman Bob Goodlatte, R-Va., recently revived the legislative debate over much needed reforms to the outdated Electronic Communications Privacy Act (“ECPA”) – the primary federal statute governing the privacy of emails and social media content. The ECPA, passed in 1986, has been widely criticized for its inconsistent standards on the protection afforded to emails and other documents. Congressman Goodlatte announced plans to make revising the ECPA a priority for his committee this term.

As we discussed in our prior post, several major U.S. companies, including Google and AT&T, have pressed for comprehensive reform of the decades’ old statute.

Law enforcement access is one issue that has drawn much scrutiny. Under current law, federal law enforcement must demonstrate probable cause to obtain a search warrant for unopened emails that are fewer than 180 days old but can obtain other stored electronic communications through a grand jury subpoena or a court order. Privacy advocates are urging legislators to expand the search warrant requirement to all wire and electronic communications.

Other issues up for potential revision include

  • When the government must notify an individual that it has obtained their electronic communications;

  • When investigators can track an individual’s wireless communication device; and

  • When electronic communications obtained without a warrant can be suppressed.

Congressman Goodlatte has committed to modernize the ECPA but has yet to propose specific changes. Some questions that have not been mentioned publicly in connection with reform also would seem ripe for examination. For example, the statute could better explain (and perhaps eliminate) the distinction between “interception” of communications and access to “stored” communications – a distinction that does not readily reflect the reality of modern communications methods. Congress also may consider addressing the appropriate treatment of forms of social media that may not be “private” in the same sense as one-to-one or direct channels of communication.

Despite the renewed push for new legislation, the prospect of its passage is far from certain. Numerous previous attempts to reform the ECPA, including three within the past year, have failed. In the House, Congressmen Jerrold Nadler (D-NY) and John Conyers Jr. (D-MI) introduced the Electronic Communications Privacy Act Modernization Act of 2012 in August. Congresswoman Zoe Lofgren (D-CA) introduced the ECPA 2.0 Act of 2012 one month later. Both bills would have made comprehensive revisions to the statute by applying Fourth Amendment protections to electronic communications, most notably by requiring a warrant for all such communications. Nadler and Conyers’ bill would also have implemented statutory suppression remedies like those currently available for oral communication surveillance. Lofgren’s proposed legislation would have extended the warrant requirement to the government’s tracking of individuals’ wireless communication devices.

U.S. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., also proposed an update to the ECPA last year. Like its House counterparts, it failed to make it to its chamber’s floor. Senator Leahy also has promised to continue making ECPA reform a priority this year.

Republicans’ criticisms of previous attempts at reform have centered on fears that police investigations could be hampered by the proposed heightened standards for obtaining search warrants for online communications, particularly in emergency investigations such as child kidnapping. Senator Charles Grassley (R-IA), one of his party’s most vocal spokesmen on ECPA reform, admits that the act needs review but remains focused on objections from law enforcement. As in previous sessions, advocates for modernizing the act will have to navigate these concerns and may have to carve out exceptions to permit disclosures under urgent circumstances.

Stay tuned for updates as we follow Congress’s renewed efforts to pass meaningful reforms of the act.

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