DALLAS – At long last, the Senate Judiciary Committee will finally hold a hearing tomorrow to discuss reforming the outdated 1986 Electronic Communications Privacy Act (ECPA), an urgent and necessary step to uphold Americans’ Fourth Amendment rights guarding against warrantless search and seizure of electronic data.
In a new Institute for Policy Innovation (IPI) publication, “Securing Our Rights Through ECPA Reform,” IPI research fellow Bartlett D. Cleland writes that the 1986 legislation that extends government restrictions on telephone wire taps to transmissions of electronic data via computer and added a prohibition on access to stored electronic communications has a glaring problem—any stored data older than 180 days is left vulnerable to warrantless search by law enforcement.
“Many decades later and with computing power doubling 20 times over since then, obviously ECPA needs to be updated for today’s technology and practices,” said Cleland. “To ignore the current state of ECPA is to ignore our Fourth Amendment rights.”
“Treating data stored electronically as less valuable than analog data—that is, data stored in our homes or offices—exposes a clear discrimination against technology,” said Cleland. “The result amounts to a loophole in well-recognized protections of our privacy and personal security.”
There are many good reasons for updating ECPA, such as enhancing the ability of U.S. companies to compete effectively in the cloud computing market, and so that law enforcement can always access electronic communications in all appropriate situations. “But none of these are as critical, or as fundamental, as updating the law to protect our rights,” said Cleland.
Although legislation to update ECPA has been introduced in both the U.S. House and Senate, with broad, bipartisan support, Congress has shown little urgency in moving the legislation, said Cleland.
“We should strive to be a nation of laws, not a nation of loopholes,” said Cleland. “If the Fourth Amendment is to be a protection, and a cornerstone protection at that, our digital data must be recognized as our property, and our property rights must be protected.”