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REFORM THE ECPA: TELL THE GOVERNMENT TO GET A WARRANT

While much deserved attention has been focused on the NSA’s surveillance tactics and their legality, a separate issue that also merits more attention is the outdated ECPA (Electronic Communications Privacy Act) that provides law enforcement the ability to get access to your electronic data, such as emails, without a warrant.

One notably archaic ECPA provision is that emails residing on a server for more than 180 days should be assumed to be “abandoned” and therefore available for law enforcement perusal without a warrant. The idea of everyone storing pretty much all of their information and communications online “in the cloud” wasn’t a gleam in anyone’s eye in 1986 when the law was passed, but it makes no sense now that email is hosted by big companies that provide huge amounts of server storage.

Law enforcement agencies seeking information on Americans routinely abuse the ECPA, and in some ways this goes beyond what the NSA is doing. It also goes against basic 4th Amendment principles and treats electronic messages differently from physical messages.

TechFreedom.org has an excellent informational graphic, What’s So Bad About ECPA, that explains the law and why it badly needs reform.

Last November, a We the People petition was created to reform the ECPA, and it has passed the 100,000 signature threshold that requires a response (it stands at about 112,000 signatures). The petition concludes:

We call on the Obama Administration to support ECPA reform and to reject any special rules that would force online service providers to disclose our email without a warrant.

But as with many other We the People petitions, the White House has ignored it. Also standing in the way of reform is an alphabet soup of government agencies, obvious ones like the DOJ and DHS  — because they always want to make it easier to snoop through both emails and written communications. But some of the strongest efforts to block ECPA reform in the government are coming from the IRS and the SEC, because they also see many advantages to rummaging through emails without having to go to the bother of obtaining a warrant.

Earlier this week, the main ECPA reform bill, House Bill 1852 sponsored by Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.), hit a new milestone: it currently has 218 co-sponsors, meaning that more than half of the House now has signed onto the bill.

House bill 1852 would strengthen digital due process protections by mandating that any government attempt to gain access to electronic communications stored with a service provider obtain a warrant first.

Currently, ECPA creates different classes of electronic content, so that where an email is stored, how old it is, and whether it has been opened can determine what kinds of protection the email would receive.

The bill is still stalled out, because the SEC and the IRS have scared off the House leadership. Attempts to update the law — including from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) — have been largely supported by law enforcement agencies but have faced backlash from some agencies, like the SEC, which as a civil agency relies on subpoenas to obtain information. At a hearing in April, SEC Chairperson Mary Jo White could not explain why they think paper documents require a warrant, but yet the SEC doesn’t bother with the much higher standard (including judicial review) of a warrant for electronic documents.

A big collection of organizations and companies, including the Center for Democracy and Technology, Free Press, EFF, Fight for the Future, Demand Progress, and the ACLU — got together last year to establish VanishingRights.com, committed to working for a long overdue update to ECPA’s archaic rules.

The NSA revelations have helped give House bill 1852 extra momentum, but it’s important to note that this is separate from the NSA reform issue. ECPA reform is an effort that’s been ongoing for more than ten years, and with more than half the House now backing it, when will the Congressional leadership finally take it up? The bill still must be voted on by a Congress infamous for its inaction, and it is likely to face political opposition from the Justice Department, which has argued against reform.

I’m hopeful, but I’m not holding my breath!