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News & Press: Legislative Alerts

Electronic Communications Privacy Act (ECPA)

Friday, March 22, 2013   (0 Comments)
Posted by: Tim O'Rourke
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Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Senator Mike Lee (R-UT) introduced bipartisan legislation to strengthen the 27-year-old Electronic Communications Privacy Act (ECPA) and better protect digital privacy rights.
"No one could have imagined just how the Internet and mobile technologies would transform how we communicate and exchange information today,” Leahy said of the original ECPA law, which he authored in 1986.  "Privacy laws written in an analog era are no longer suited for privacy threats we face in a digital world.  Three decades later, we must update this law to reflect new privacy concerns and new technological realities, so that our Federal privacy laws keep pace with American innovation and the changing mission of our law enforcement agencies.” "When ECPA was enacted, email was primarily a means of communicating information, not storing it," said Senator Lee. "Today, we use our email accounts as digital filing cabinets, where we store many of the personal documents and sensitive information that the Fourth Amendment was meant to protect.  This bill takes an essential step toward ensuring that the private life of Americans remains
private.”The Electronic Communications Privacy Act Amendments Act of 2013 establishes a search warrant requirement in order for the government to obtain the content of Americans’ emails and other electronic communications, when those communications are stored with a third-party service provider. The bill eliminates the outdated "180-day” rule that calls for different legal standards for the government to obtain email content depending upon the age of an email, and it requires that the government notify an individual whose electronic communications have been disclosed within 10 days  of obtaining a search warrant. 
 
ECPA reform was the subject of two Committee hearings in recent years, and the Senate Judiciary Committee last November favorably reported legislation substantially similar to the Leahy-Lee bill introduced March 19, 2013.  ISPLA covered those prior hearings and reported on same to our members. In January 2013, Senator Leahy stated that updating ECPA was his top privacy priority for the 113th Congress.
   

"I thank Senator Mike Lee for cosponsoring this important privacy bill,” Leahy said.  "Senator Lee and I understand that protecting Americans’ privacy rights is something that is important to all Americans, regardless of political party or ideology.” 
  
A 3-page sectional analysis summary is at: 
http://www.leahy.senate.gov/download/section-by-section-ecpa-reform-bill 
  
The 11-page bill is available at: 
http://www.leahy.senate.gov/download/ecpa-bill-2013 
  
A statement by Elana Tyrangiel, Acting Asistant Attorney General, Office of Legal Policy, was submitted before the Committee on the Judiciary, Committee Subcommittee on Crime, Terrorism, Homeland Security and Investigations, House of Representatives on March 19, 2013. Her testimony included the Pen Register Statute and the Stored Communications Act (SCA) as well as amendments to the Wiretap Act. Title 18 Section 2701 prohibits unlawful access to certain stored communications: anyone who obtains, alters, or prevents authorized access to those communications is subject to criminal penalties. Section 2701 regulates voluntary disclosure by service providers of customer communications and records, both government and non-governmental entities. Section 2703 regulates the government's ability to compel disclosure of both stored content and non-content information from a service provider; it creates a set of rules that all governmental entities must follow in
order to compel disclosure of stored communications and other records.   
  
DOJ testimony outlined six areas that need updating to the SCA and ECPA: 
  
(A) Clarifying Excepions to the Pen Regislter Statute 
(B) Clarifying the Standards for Issuing 2703(d) Orders 
(C) Treating Civil Discovery Subpoenas Like Other Subpoenas 
(D) Making the Standard for Non-content Records Tecknology-Neutral 
(E) Clarifying that Subscribers May Consent to Law Enforcement Access to Communications Content 
(F) Appellate Jurisdiction for Ex Parte Orders in Criminal Investigations 
  
Department of Justice Testimony of 8-pages is available at: 
http://judiciary.house.gov/hearings/113th/03192013_2/Tyrangiel%2003192013.pdf 
  
Bruce Hulme 
ISPLA Director of Government Affairs 
www.ISPLA.org 
Your Proactive Voice from State Capitols to the Nation's Capitol 

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