Sen. Patrick Leahy (D-Vt.) today introduced legislation (S. 1011) to reform the Electronic Communications Privacy Act (ECPA). The law, enacted in 1986, was designed to protect individuals’ privacy by limiting governmental access to electronic data stored or sent using platforms or computers owned by third parties.
“Several lawmakers have proposed sweeping new regulation of how companies collect and use data to fund and improve the online content and services cherished by consumers,” said TechFreedom President Berin Szoka. “The costs to consumers of such regulations could be enormous, yet the harms supposedly justifying new regulations remain largely amorphous. Today, finally, we see a bill that focuses on the one clear harm that seems to underlie most online privacy concerns: law enforcement’s access to personal data without judicial scrutiny. Addressing that very real problem should unite everyone who cares about privacy.”
Sen. Leahy’s proposed legislation would amend ECPA to protect Americans’ private information stored remotely or in the “cloud” from unwarranted search and seizure, and limit unwarranted governmental access to mobile location information. The reforms would implement two of the four consensus principles advocated by the Digital Due Process coalition, a diverse coalition of public interest organizations, free market groups, high-tech companies, and scholars.
“As technology has advanced, the laws protecting Americans from unreasonable search and seizure have failed to keep up,” said Kelly William Cobb, Executive Director of Americans for Tax Reform’s DigitalLiberty.Net. “The reforms take an important step toward updating antiquated protections for consumers utilizing modern-day cloud and mobile services. Importantly, the bill ensures law enforcement continues to have the tools to preserve national security and fight crime, while making the law coherent and consistent for everyone.”
“Sen. Leahy’s proposed modernization of ECPA would benefit not only law enforcement but also firms that offer innovative electronic communications services,” said Ryan Radia, CEI Associate Director of Technology Studies. “Uncertainty over how to apply ECPA to these platforms harms companies that value user privacy but also want to abide by the law. Users also suffer under this confusing regime, as law enforcement may compel providers to disclose certain types of private user information through a mere subpoena issued without meaningful judicial review and sometimes with no notice whatsoever. The reforms would also reduce the incentive for cloud computing firms to locate their servers abroad, beyond the reach of U.S. law enforcement.”
“ECPA reform is a win-win: It benefits consumers, law enforcement, and businesses. It also honors our constitutional heritage by clarifying that normal law enforcement access to private data should be subject to the judicial warrant requirement enshrined in the Fourth Amendment,” said Szoka. “Setting clear standards for law enforcement access is the best way for the U.S. to raise global standards for protecting privacy. Sen. Leahy’s bill is an important first step, but comprehensive ECPA reform should address all four Digital Due Process principles.”
For more on ECPA Reform:
- See this April 2011 free market coalition letter to the U.S. Senate Judiciary Committee.
- Also see this September 2010 joint free market statement, which was entered on the Congressional Record in both the House and Senate Judiciary Committee proceedings on ECPA reform.
Available for Comment:
Kelly William Cobb
Americans for Tax Reform’s DigitalLiberty.Net
Competitive Enterprise Institute
Click here for a PDF of the press release.