Electronic Communications Privacy Act Reform Passes First Hurdle

 

On Monday, February 6, a bill aimed at modernizing the Electronic Communications Privacy Act (the “ECPA”) passed through the House of Representatives. Bipartisan support of the bill stems from the fact that the ECPA was originally enacted in 1986, three years before the Internet was invented, and as such does not sufficiently address or protect the systems provided by modern technology.

 

As originally passed, the ECPA allowed law enforcement, without a warrant, to access files stored on a third-party server for more than 180 days. Passing under suspension of the House rules Monday night, the Email Privacy Act alters the previous rule of the ECPA to now universally require warrants for all information previously covered by the ECPA, and now including information such as cloud hosting, webmail, and online photo galleries. Astoundingly, this same bill cleared the House in 2016 by a vote of 419-0, but lost steam upon reaching the Senate. Rep. Kevin Yoder (R-Kan.), who introduced the bill with bipartisan co-sponsorship, said on the House floor before votes were cast, “We can send a strong message to the American people that their privacy matters.”

 

Although the reform is largely supported by those in the tech/online industry, many groups and corporations including Google, Facebook, Apple, Microsoft, and Verizon already require law enforcement production of a warrant before surrendering any data. Under the Obama Administration, the Department of Justice has also required a warrant for all searches, but new administrations are capable of changing that policy.

 

Even after passing through the House for a second time on such a large majority vote, the bill still faces major threat in the Senate as currently written. As reported by The Hill’s Harper Neidig, Iowa Sen. Chuck Grassley (R) stated that while everyone agrees that the ECPA needs to be updated, “[t]here was broad, bipartisan interest on our committee to modernize the law to also address law enforcement and national security equities in ways the House bill omits.” As conservatives in the Senate begin to voice their concerns over the bill’s possible effect of undercutting law enforcement, civil libertarians and the tech/online industry have championed the House vote.  Now in the hands of the Senate, the timeline for a finalized bill depends largely on reconciling concerns over the powers granted to law enforcement versus private corporate and individual rights.