Today marks an important step toward protecting the rights of Americans while ensuring law enforcement has the ability to fight crime in the digital age. A bipartisan group of U.S. senators introduced new legislation Thursday to update the Electronic Communications and Privacy Act (ECPA) and require that a warrant be obtained by law enforcement before it can access the content of electronic communication. The new bill, the ECPA Modernization Act of 2017, has garnered broad support from across the business community, advocacy groups and government. In fact, this is exactly what federal judges have been calling for to resolve the legal questions tying up our courts.
ECPA became law in 1986, at a time when fewer than 10 percent of U.S. households had a computer at home, the internet was a mystery to most and cell phones were used by fewer than 1 percent of Americans. Today, we live in a digital world powered by the cloud and awash in data. Yet ECPA fails to address the global and pervasive nature of data use and storage. This out-of-date law must be updated to not only protect privacy rights, but to help law enforcement keep people safe.
We are particularly encouraged that the legislation calls for reasonable guidelines for secrecy orders that make them the exception, not the rule, shortens their duration and strengthens the standard used for issuing an order. It also requires that a warrant be obtained by law enforcement before it can access customer information. We appreciate that there are times when secrecy around a government warrant is needed. Yet it has become routine for the U.S. government to issue orders that require email providers to keep these types of legal demands secret. These are important provisions and should remain in the bill as it moves through the legislative process.
The movement to modernize our digital privacy laws is gaining momentum both outside and in Washington, D.C., including recent hearings in the House and Senate which both demonstrated strong support for modernizing the law.
This is clearly an issue that both sides of the aisle agree on. The legislation introduced today by Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vermont) builds on the work of the U.S. House of Representatives, which unanimously passed a version of ECPA reform earlier this year under the leadership of Chairman Bob Goodlatte (R-Virginia), Rep. Kevin Yoder (R-Kansas), and Rep. Jared Polis (D-Colorado).
Much has changed since 1986 and our laws should reflect this progress. We are long overdue for a modern framework for modern times. Without one, we are left with a law ill-equipped for today’s technology that undermines both privacy and law enforcement. Now is the time for Congress to act, and we urge the Senate to move forward on this important legislation.