PublishedJune 18, 2014

Bipartisan Opportunity for Action: Fourth Amendment Rights Online

A majority of the House of Representatives has now co-sponsored H.R. 1852, the Yoder-Graves-Polis legislation that would update to the Electronic Communications Privacy Act (ECPA) to create a bright-line, warrant-for-content standard. The bill has been steadily gaining momentum in Congress for the past year and has been endorsed by the White House. Any proposed exceptions or carve-outs sought by civil agencies like the SEC would undermine a clear warrant-for-content rule and thwart Internet and cloud users’ reasonable expectations of privacy.

Congress now has a historic opportunity to update EPCA for the 21st century and to ensure that users’ electronic communications receive the same privacy protections as offline communications. A recent polling survey from the Digital 4th Coalition reveals that over 80% of voters in six different states think ECPA should be updated so that the government will need a warrant to access old emails.

This is a much simpler and easier improvement for Americans’ privacy than the USA Freedom Act, which addresses NSA activities, and unfortunately got weakened before passage by the full House last month.   In contrast, the ECPA reform bill explicitly does not implicate national security.  Codifying a bright-line, warrant-for-content standard would update the law to comport with standard practice today regarding law enforcement requests from third party intermediaries.

CCIA is a founding member of the Digital Due Process coalition that has spent over 3 years advocating for ECPA reform.   We urge the House Judiciary Committee, whose leadership has recognized the need for an ECPA update since last year, to move expeditiously to pass H.R. 1852 and send it to the House floor for almost certain approval.

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