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December 3, 2015

Is SEC's Power Grab More Important Than the Fourth Amendment?


Earlier this week we wrote about the dysfunctional Congress’s inability to fulfill even its most basic obligations to pass appropriations bills and broadly supported bipartisan legislation, and used the extension of the Internet Tax Freedom Act (ITFA) as a prime example.

But there’s another glaring example: There is near universal agreement that the Electronic Communications Privacy Act (ECPA) fails the test of providing Fourth Amendment-level protections to Americans’ email and other electronic data.

The bill to fix ECPA has over 300 cosponsors and would pass today if brought to a vote.  But for three straight years it has languished, caught up in the flotsam and jetsam of Congress’s overall dysfunction.

Currently, ECPA properly requires the government to obtain a search warrant in order to access recent electronic communications, defined as 180 days old or less. But, in an unforgivable mistake, even for 30-year-old legislation, ECPA considers anything older than 180 days as fair game for government access and unworthy of basic Fourth Amendment protection.

Who would object to fixing such an obviously flawed law? The Securities and Exchange Commission (SEC), that’s who.

It turns out that the SEC is holding up ECPA reform in an attempt to parlay more agency power. It’s a power grab, pure and simple. The SEC wants a carve-out in any updated ECPA bill that would give the agency power to access your data without a warrant.

During Tuesday’s long-awaited hearing on ECPA reform, Rep. James Sensenbrenner (R-WI) reminded the SEC witness that this is a power no civil agency has in any form today. There is, of course, no exception in the Fourth Amendment for civil government agencies. In fact, Rep. Ted Poe (R-TX) reminded the SEC that one of the purposes of ECPA reform, and indeed the purpose of the Fourth Amendment, is precisely to protect American citizens from their government. It would be completely counter to the Constitution to give government a carve-out from a provision designed to protect us from government.

And it’s not as if the SEC somehow lacks the power to investigate and bring charges against its targets.

Thankfully, it’s the job of agencies like the SEC to follow the law, not to make the law. So it’s time for Congress to repulse the SEC’s power grab, double down on the Fourth Amendment, and pass a robust ECPA update that gives our digital data the same protection as our “papers and effects.”

ECPA reform is strikingly bi-partisan. It puts IPI and EFF on the same page, for instance. It would be a shame to squander such rare comity.

Enhancing Americans’ constitutional privacy and freedom is a win-win for Congress, especially given the current zeitgeist in which Americans so distrust their government.  A strong ECPA update would send a message from a new speaker of the House that a new sheriff is in town, and things are going to be different.


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