Proposed Changes to the Electronic Communications Privacy Act (ECPA)
By: LOUSENE M. HOPPE
May 2011
The Electronic Communications Privacy Act (ECPA) was enacted twenty-five years ago to govern when various parties, primarily law enforcement and other government authorities, may access communications and related information. The law extended restrictions on the government’s use of wiretaps from telephone calls to transmissions of computer data.
Critics of the law have noted that, among other weaknesses, the law fails adequately to protect consumer data that is stored on third-party computer servers (i.e. “in the cloud”). For instance, email communications that are stored in the cloud for more than 180 days are generally deemed to be abandoned and outside the realm of Fourth Amendment protection, which would require a proper warrant to be issued before the information is gathered. According to some critics, including Microsoft and other corporations, the ECPA should be simplified and made consistent, to protect email and other forms of electronic communication regardless of where those messages have been stored and whether or not they have been accessed.
In light of these issues and increases in cloud computing, social networking, and other technological advances, the Senate Judiciary Committee recently held a hearing regarding proposed updates to the EPCA. During the hearing, Senate Judiciary Committee Chairman Patrick Leahy noted that the ECPA is “hampered by conflicting standards that cause confusion for law enforcement, businesses, and consumers.” Associate Deputy Attorney General James Baker spoke on behalf of the Department of Justice. According to Mr. Baker, requiring government officials to obtain a warrant based on a finding of probable cause before disclosure of stored content is compelled could result in “collateral consequences to criminal law enforcement and the national security of the United States.” However, Mr. Baker did testify that some provisions of the ECPA required updating and clarification, including governmental access to cell tower information relating to cell phone locations and communications.
A copy of Mr. Baker’s testimony before the Senate Judiciary Committee may be found here.