Nearly six months ago, the Email Privacy Act (H.R. 387) was approved overwhelmingly in the House. Now, bipartisan legislation just introduced in the Senate goes further. It fully incorporates and significantly expands the protections laid out in H.R. 387 to comprehensively update the 1986 Electronic Communications Privacy Act (ECPA). The “ECPA Modernization Act of 2017” was co-authored by Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT). It will be referred to the Senate Judiciary Committee on which both serve.
ALA has long been a staunch supporter of comprehensive ECPA reform, which has been proposed but failed to pass in the past several Congresses. President James Neal greeted the milestone introduction with this public statement:
“No freedoms are more vital, and important to librarians, than those of inquiry and speech. Without real privacy, Americans effectively have neither. Current law that allows our government to get and view the full content of our most private electronic communications without a search warrant isn’t just outdated, it’s dangerous in a democracy. ALA strongly supports the bipartisan Lee/Leahy “ECPA Modernization Act” to finally and fully bring the Electronic Communications Privacy Act – and with it our fundamental rights to privacy, inquiry and speech – into the modern era.”
Like the House’s bill, the ECPA Modernization Act will for the first time require a warrant for authorities to access the content of many forms of electronic communications not now protected. It also goes further to impose a similar requirement for “geo-location” information from cell phones. In addition, among other important new measures outlined on Sen. Lee’s website, the bill puts “teeth” in the cell phone location clause by permitting courts to suppress such evidence if acquired in an illegal warrantless search.
No action in the Judiciary Committee is anticipated on the bill before the Senate recesses for its August break. ALA and fellow public and private sector members of the Digital Due Process coalition collectively will be pushing hard in the fall, however, for adoption of this potentially landmark legislation. (You can read many of their statements of support for the bill here.)
As a hedge against this ambitious reform package stalling, supporters also introduced a second bill identical to H.R. 387 as adopted by the House in February. Were the Senate to pass that more limited but still valuable measure, it would move directly to the President’s desk for signature. The broader ECPA Modernization Act, if passed by the Senate, would require further consideration and approval by the House. Its currently broader scope could make that difficult.