July 27, 2017
OTI supports the ECPA Modernization Act of 2017, introduced today by Sens. Lee and Leahy. This bill builds on the reforms of the Email Privacy Act, which has unanimously passed the House of Representatives twice and was also reintroduced in the Senate today. Like the Email Privacy Act, this ECPA Modernization Act would close a loophole in the 30-year-old Electronic Communications Privacy Act of 1986 (ECPA). That loophole allows law enforcement to obtain the contents of individuals’ internet communications without a warrant after it is 180 days old. The Email Privacy Act and ECPA Modernization Act would establish a warrant-for-content requirement irrespective of the age of the communication. In addition to that crucial reform, the ECPA Modernization Act would also make other meaningful improvements, including:
Require more specificity from prosecutors in applications for court orders under 18 USC 2703(d), which permits law enforcement to access detailed metadata concerning individuals’ internet activity like when they go online, who they email or chat and at what time, what services they subscribe to, and how they pay for those services;
Strengthen requirements for when law enforcement can obtain real-time communications metadata, including web browsing history;
Extend ECPA protections by requiring that law enforcement obtain a warrant before demanding an individual’s location information; provide definitions for the terms “electronic communications devices” and “geolocation information”, and create a remedy that allows a defendant to suppress information in court proceedings if that information was improperly obtained;
Strengthen the requirements for when law enforcement can delay notifying an individual that they were the subject of a search; and
Require GAO and FCC reports on the use of cell site simulators.
These are common-sense reforms that are necessary to recalibrate the ECPA so that its protections reflect the realities of modern technology, respect Americans’ reasonable expectation of privacy in their online communications and location, and comport with the requirements of the Fourth Amendment.
The following statement can be attributed to Robyn Greene, Policy Counsel at New America’s Open Technology Institute:
“The ECPA Modernization Act builds upon the important reforms of the Email Privacy Act. We live in a world where we carry surveillance and tracking devices with us wherever we go and we save sensitive online communications indefinitely, yet the law doesn’t reflect this dramatic shift. This bill will bring ECPA’s protections in line with the realities of how we use and interact with technology and communications devices. It will help to ensure that Americans’ rights are protected, and are not subject to arbitrary rules that applied to the infancy of the information age that’s long since passed. Congress should not delay in passing ECPA reform; it’s already two decades overdue.”