WASHINGTON – Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) recently introduced two pieces of legislation that would require police to obtain a warrant from a judge to gather Americans’ emails, texts, photos and other electronic communications held by tech companies.
The ECPA Modernization Act of 2017 would update the Electronic Communications Privacy Act, protecting electronic information stored on the cloud as well as location data on cell phones. The 1986 ECPA, which applies to the FBI and state and local police, allows agencies to gather information from third parties if the information is six months or older.
The Email Privacy Act, which would protect texts, email and photos, is companion legislation to a bill that passed unanimously in the House last year.
“The Electronic Communications Protect Act was written 30 years ago before the widespread use of email,” Lee said in a statement July 27. “Americans now expect that their email communications will have the same privacy protections as their written communications. This bill would provide that common sense protection.”
Those signing onto the Email Privacy Act included Sens. Dean Heller (R-Nev.), Jeanne Shaheen (D-N.H.), Steve Daines (R-Mont.), Cory Gardner (R-Colo.) and Al Franken (D-Minn.).
“Our digital privacy laws are woefully out of date and make no sense in the modern world,” Leahy said in a statement. “Americans expect and deserve strong, meaningful protections for their emails, texts, photos, location information and documents stored in the cloud. It’s time for Congress to enact broad reforms to ECPA and other privacy laws to bring these laws into the 21st Century.”
The issue of electronic privacy has garnered a lot of attention recently. Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have been particularly outspoken against Section 702 of the Foreign Intelligence Surveillance Act, which targets international communications. Section 702 allows agencies to track communications with foreign targets suspected of terror plots and other harmful acts, which has allowed officials to incidentally collect emails and other electronic communications from Americans. Paul said recently that he’s worried that the intelligence community is targeting him and other lawmakers.
The legislation introduced by Lee and Leahy concerns domestic communication laws, which are ambiguous given that they were written for technology more than 30 years old. Congress, for instance, has never set guidelines for location tracking.
Chris Calabrese, vice president of policy for the Center for Democracy & Technology, argued in an interview Wednesday that the U.S. needs to update internet privacy laws so that they better reflect constitutional values. The courts, he noted, don’t often interpret the Fourth Amendment to apply to information held by third parties, which encompasses the vast majority of online communication.
Police have far more information than they did 20 or 10 years ago, Calabrese said, adding that politicians need to strike a better balance between privacy and security.
“All this bill does is restore a little bit of balance so that people can think their thoughts and communicate without worrying about unfair government scrutiny,” he said, adding that it’s a bipartisan issue. “Americans across the political spectrum care about their privacy rights, and this is something that, even in an environment where we’re not getting a lot done, we should still be able to protect people’s privacy.”
Leahy said while introducing the legislation that he was disappointed last year when politics prevented the passage of the Email Privacy Act in the Senate. He claimed that Republicans on the Senate Judiciary Committee “threatened to use it as a vehicle to push poison pill amendments on controversial national security matters, effectively killing the bill for their own political purposes.”