It’s a pretty sure bet that, when James Madison penned the Fourth Amendment to assure the right of all Americans to be “secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” he didn’t have protecting emails, texts, tweets and cloud-stored photo and other files in mind. Fortunately, Congress attempted to remedy that understandable omission 197 years later by passing the Electronic Communications Privacy Act (ECPA) to require that authorities obtain a search warrant, based on probable cause, to access the full content of such material. But given the difficulty, expense and thus unlikelihood of storing digital information for extended periods in 1986, ECPA’s protections were written to sunset 180 days after a communication had been created.
Thirty years later, in an age of essentially limitless, cheap storage – and the routine “warehousing” of our digital lives and materials – this anachronism has become a real, clear and present danger to Americans’ privacy. ALA, in concert with the many other members of the Digital Due Process coalition, has been pushing hard in every Congress since early 2010 to update ECPA for the digital age by requiring authorities to obtain a “warrant for content” for access to any electronic communications from the moment that they’re created. Last year, in the 114th Congress, we got tantalizingly close as the Email Privacy Act (H.R. 699) passed the House of Representatives unanimously (yup, you read that right) by a vote of 419 – 0: a margin unheard of for any bill not naming a post office or creating “National Remember a Day” day. Sadly, action on the bill then stalled in the Senate.
Undaunted, the bill’s diehard sponsors – Reps. Kevin Yoder (R-KS3) and Jared Polis (D–CO2) – have come roaring back in the first full week of the new, 115th Congress to reintroduce exactly the same version of the Email Privacy Act that passed the House last year without opposition. Look for similar action to get the ball rolling again in the Senate in the very near future and, not long after that, for a call to action to help convince Congress to heed ALA President Julie Todaro’s call for immediate action on this critical bill. As she put it in a January 9 statement:
ALA calls on both chambers of Congress to immediately enact H.R. 387 and send this uniquely bipartisan and long-overdue update of our laws to the President in time for him to mark Data Privacy Day on January 28, 2017, by signing it into law.”