Wednesday, June 18, 2014

A significant milestone for digital due process

Posted by David Lieber, Senior Privacy Policy Counsel 

Although the recent debate around government surveillance has focused on the reach of the National Security Agency (NSA) and the Foreign Intelligence Surveillance Act (FISA), we have long supported efforts to update the Electronic Communications Privacy Act (ECPA) so that the government must obtain a warrant to require a provider to disclose content stored with the provider. 

The ongoing campaign to update ECPA reached a significant milestone today. For the first time, a majority of Members in the U.S. House of Representatives have gone on record to support bipartisan legislation (H.R. 1852) sponsored by Representatives Yoder (R-KS), Graves (R-GA), and Polis (D-CO) that would create a bright-line, warrant-for-content rule for electronic communications. 

This common-sense reform is long overdue. While well-intentioned when enacted in 1986, ECPA no longer reflects users’ reasonable expectations of privacy. For example, an email may receive more robust privacy protections under ECPA depending on how old it is, whether it has been opened, and where it is stored — while users attach no importance to these distinctions. The Department of Justice itself has acknowledged that there is no principled reason for this rule. 

In 2010, a federal appeals court said that ECPA itself is unconstitutional to the extent that it authorizes the government to obtain the content of emails without a warrant. Google agrees with the court that the Fourth Amendment requires that the government issue a search warrant to compel a provider to disclose the content of communications that a user stores with a provider. 

Congress should send a clear message about the limits of government surveillance by enacting legislation that would create a bright-line, warrant-for-content standard. Now that a majority has gone on record to support this common sense update, we once again urge Congress to expeditiously pass legislation to update ECPA.