Sen. Patrick Leahy, D-Vt., and Sen. Mike Lee, R-Utah, introduced a bill in the Senate last week to modernize the 1986 Electronic Communications Privacy Act.
Leahy was part of the Reagan administration-era effort to write and pass the initial law, which continues to be the foundation for determining what personal digital information the government can access.
“ECPA no longer makes any sense in our digital world,” Leahy said in a statement about the bill.
The bill would require the government to have a warrant to access the content of any electronic communications. It also would require that real-time location data be protected by warrants.
In addition, the proposal would force law enforcement to notify people when their information is accessed through a third-party provider.
The two senators have proposed updates to the privacy law over the last six years to bring it in line with a 2010 court decision that found that a warrant is always necessary for law enforcement to access the content of emails. However, the Senate has failed to pass the legislation before.
Earlier this year, the House unanimously passed the Email Privacy Act, which would bring the law in line with the court decision.
The House legislation would close a loophole in the 1986 law, which states that law enforcement doesn’t need a warrant to access the contents of emails more than 180 days old. Because of storage limitations at the time the law was passed, those communications could be considered abandoned.
Leahy and Lee’s ECPA Modernization Act is a broader parallel bill.
“I will keep pushing the Senate to advance legislation that keeps pace with Americans’ expectations of privacy,” Leahy said. “The American people expect these protections, and they deserve them.”
Lia Ernst, of the Vermont chapter of the American Civil Liberties Union, said an update to the federal law is past due.
“ECPA as it currently exists is completely antiquated and completely inadequate for the task of protecting modern-day communications from government intrusions,” Ernst said.
Ernst pointed to part of the law that classifies emails older than 180 days as abandoned. That section has not aged well as storage capacity and other electronic limitations have expanded, she said. Now, emails that people hold onto for weeks and months tend to be the more important ones, she said.
“That provision just makes no sense in comparison to how people actually use electronic communication,” Ernst said.
As the federal government has failed to provide updates to the electronic communications law, many states, including Vermont, have enacted their own electronic privacy statutes, “but they’re not enough,” she said.
Vermont lawmakers passed legislation last year that, among other things, requires law enforcement to get a warrant to access location data and the contents of emails and texts. Other information is subject to subpoena.
Ernst said the Vermont law created “good protections.”
However, she said, the state laws do not apply to federal law enforcement, and an update of the national law is necessary.
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