In 1986, IBM released its first laptop computer, the 5140 Convertible. For $1,995 (over $4,300 in today’s dollars), consumers could own this 12-pound PC. Thirty years later, in April 2016, HP released the Spectre laptop, one-fifth the weight of its 30-year-old counterpart with 15,000 times more memory for a fraction of the price. Clearly, the digital landscape has changed quite a bit over the last thirty years; unfortunately, some of the laws governing our online communications have not.
That is why recent news out of the House of Representatives is so important. On Wednesday, the House Judiciary Committee passed H.R. 699, the Email Privacy Act, by a vote of 28 to 0. H.R. 699 provides much needed updates to the Electronic Communications Privacy Act of 1986 (“ECPA”).
ECPA was created to extend Fourth Amendment protections to online communications — communications that looked far different in 1986 than they do today. At the time, companies like Google and Dropbox didn’t exist, clouds couldn’t store information, and “communicating” meant writing letters, making calls, or speaking to someone in person. Policymakers in 1986 never could have imagined the avenues people would use to communicate and store data in today’s marketplace. Thus, the provisions within ECPA never could have accommodated this technology either. As a result, the privacy protections within ECPA are outdated and must be upgraded. For instance, ECPA only applies to information stored for less than six months, treating a customer’s data, cell phone location, and any other electronic information stored longer as abandoned property by not requiring a warrant to gain access.
This arcane provision in ECPA allowing law enforcement access to personal documents and communications after 180-days is one reason why over 85 percent of voters support updating the law to better conform to the digital age, and why some states have even enacted their own ECPA updates. Reforming ECPA will safeguard Americans’ quintessential right to privacy, and will strengthen consumer trust in the creative and life-changing technologies that have helped make the United States the world’s innovative hub.
It goes without saying that it is important for law enforcement to be able to conduct investigations that comply with the civil liberty protections granted in the Fourth Amendment. The right to privacy is one of America’s most fundamental legal concepts and is one of the ideals that differentiates us from repressive regimes. To address the discrepancies between ECPA, as written, and our constitutionally-guaranteed civil liberties, some steps have already been taken to bring the thirty-year-old law into the twenty-first century. The Court of Appeals for the Sixth Circuit decided that Fourth Amendment protections apply to searches of electronic communications, regardless of their age, in United States v. Warshak. Similarly, California enacted its own ECPA law to better reflect today’s digital ecosystem. While both of these steps represent progress, Congress should codify one national, uniform standard to avoid the unpredictable nature of relying on case law and a patchwork of state laws.
In our ever-evolving digital ecosystem, technology often advances before policymakers can catch up to it, yet in this instance, the government already recognizes the transformative powers of the internet. In many circumstances, the government currently makes no distinction between actions taken online, in person, or via mail. That’s why you can now apply for a passport, sign up for veterans’ insurance, register to vote, and so much more with just a click of the mouse, which begs the question: Why is there a different standard applied to e-mail and postal mail correspondence? According to a top Justice Department official, there is “no principled basis” for this distinction.
Fortunately, a majority of lawmakers agree. The bipartisan Email Privacy Act is supported by over 300 Members of Congress, and makes critical changes to address the challenges in a thirty-year-old bill passed before most Americans had personal computers, before the internet resembled anything like it is today, and back when IBM released its first laptop.
The Alliance applauds the Members of the House Judiciary Committee for their hard work on the Email Privacy Act. The bill helps protect Americans from unwarranted government intrusions, and will bolster consumers’ trust in the innovative products that bright minds are bringing into the marketplace. It is critical that the bill be considered by the entire House, as well as the Senate. On behalf of the hundreds of millions of Americans who enjoy the fruits of innovation, these efforts will protect their rights to privacy as the Framers intended.
Jarrod Nagurka
U.S. Policy and Government Relations Associate
