The Electronic Communications Privacy Act, or ECPA, is a federal law passed in 1986 that established standards for government access to private information that is transmitted and stored on the Internet, such as emails, private photos, or corporate data. The legislation originally passed nearly three decades ago – before most Americans had access to a home computer, before email was widely used, and before Facebook, Twitter and cloud computing transformed the way we live, work and store our private information.
As the law is currently written, ECPA empowers prosecutors and FBI agents to issue subpoenas – without the approval of a judge – that force third-party vendors (such as email service providers) often to turn over their customers’ privately stored data. Also, government officials interpret the law to permit them, without a warrant from a judge, to use location information generated through cell phone use to track a person over time.
The proposed ECPA reforms would require a warrant based on the traditional standard of probable cause in order for officials to force service providers to disclose the contents of email and other electronic communications – just like what is already required to access digital communications that are less than 180 days old or to obtain the information you send in the mail or transmit over the telephone. It would also extend the warrant standard to location tracking (following a person over time through his or her cell phone).
The 113th Congress.
ECPA reform will positively impact individuals and innovative companies across the country. Reforming ECPA means not only will privacy protections be brought into the 21st century, but also small businesses – which currently have to navigate through a murky legal landscape – will have increased clarity and be less burdened by potential legal costs.
ECPA reform will:
- Continue to allow law enforcement officials to obtain electronic communications in all appropriate cases (such as terrorism or child pornography cases) while still protecting Americans constitutional rights.
- Help protect Americans’ Fourth Amendment rights in a digital world.
- Help ensure U.S. competitiveness in regards to cloud computing. Currently ECPA allows officials to access data without a warrant or notice to the owner of the data, potentially discouraging businesses and individuals from using U.S. cloud services.
- Provide relief for small businesses who do not have the time or legal resources needed to comply with the current complexities and ambiguities ECPA.