Wednesday, Representatives Zoe Lofgren (D-Calif.), Ted Poe (R-Texas) and Suzan DelBene (D-Wash.) introduced legislation (H.R. 983) that would ensure law enforcement obtains a warrant before accessing our private electronic communications or location data. This bill, while not a complete fix, is trying to provide a much-needed update to the Electronic Communications Privacy Act (ECPA) of 1986.
Though forward-thinking when it was first introduced, ECPA unfortunately was written for the technologies of the ’80s – long before the advent of cloud storage, modern webmail, and location-aware tablets and phones. ECPA’s outdated language has left loopholes which the government has attempted to exploit by arguing that they can access your old emails and documents you store in the cloud without going to a judge and getting a court-issued warrant.
Honestly, we think that’s an absurd argument and runs totally contrary to the principles of the Fourth Amendment. In fact, we’ve fought in court again and again for user privacy when it comes to their digital documents and electronic communications. But even as we continue to fight this issue in the courts, we’re asking Congress to step in and update ECPA to make sure that the Department of Justice knows they can’t read our emails, rummage through our Google documents, or track our cell phones without a warrant.
One of the best parts of H.R. 983 pertains specifically to government collection of location data. The bill says:
No person may obtain the geolocation information of a person for protective activities or law enforcement or intelligence purposes except pursuant to a warrant…
So what happens if the government disregards this rule and collects location information anyway? That information can’t be used as evidence in court – thus ensuring law enforcement is incentivized to get a warrant before tracking our locations.
Protecting the privacy of users’ location data is an issue we’ve long championed in court, submitting numerous amicus briefs arguing for a search warrant requirement in cases involving cell phone location records [PDF] and GPS devices. It’s also a fundamental component of our ECPA activism campaign.
For the last couple years, we’ve been advocating for ECPA reform through a petition on our website. And last year, the Senate Judiciary Committee responded by passing ECPA reform out of committee – a huge step forward to getting these reforms codified into law. We’re also pleased to see states taking up this issue, including proposals in Texas and California.
We’re pleased to see Representatives Lofgren, Poe, and DelBene take up this crucial issue, but the current draft isn’t a perfect solution to all ECPA woes. For example, the bill has room for improvement on the issue of evidence suppression for email content collected without a warrant. We hope this already promising bill can be further improved through amendments.
By introducing this reform bill, the 113th Congress has an opportunity to enact powerful protections for everyday Internet users – which would be particularly appreciated, since all too often Congress uses its power to try to undermine our digital civil liberties.
If you agree that the government shouldn’t be snooping through inboxes without a warrant, then please sign our petition, which will automatically send an email to Congress demanding they reform ECPA.
Read the bill here (PDF).
Please visit The Electronic Frontier Foundation for more privacy news and action items.