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ECPA Reform

The Email Communications Privacy Act, or ECPA, is a 29-year-old US law controlling access to private communications by government agents. There have been a lot of developments in electronic communications since 1986, and this law no longer sufficiently protects people’s rights. The House Judiciary Committee was open to reforming the law last month, proposals have been submitted, and Congress is ready to vote the amendments through. But several civil agencies don’t want the reform passed just yet. They are petitioning for more power to read personal content that is being stored online.

Snooping on Private Email Contents Without a Warrant

The ECPA allows government agents like the police to access the contents of email messages and other content saved online without a warrant as long as it has been there for more than 6 months. All they need according to this outdated law is a subpoena. All communications and files online are basically accessible by government agents without a request for access even being reviewed by a judge. The latest Congress brought out some good proposals for ECPA reform so that the law would be appropriate for this digital age we live in. Unfortunately, they were not passed or enacted.

Privacy Reform is a Must

Back in 1986, the world did not have much in terms of online storage and communications. Most emails, for instance, were not even stored for very long because the technology of the day did not allow for feasible long-term storage. And the cloud did not even exist yet. Now, however, there is a lot more personal content being saved by online services and to the cloud because the technology has greatly improved.

The ECPA allows all of this to be freely accessed, including even medical records, journals, and other very personal data, which should not be the case. This law clashes severely with the protections set forth in the Fourth Amendment of the Constitution. If the ECPA is not amended, the privacy rights of US citizens will continue to be violated on a regular basis, and lawfully. In the real world, law enforcement for instance cannot just take our stuff and go through it without processing requests that go through the proper channels so that all motivation for searches and seizures can be checked and verified. We do not have these protections set up for property including data that is stored in online accounts.

In late November last year, a poll was taken to see what the people thought about unchecked data access. Over three quarters of those who participated said that their online communications, photos, financial statements, and other personal information should not be touched without a proper warrant, as is required for physical mail and other material. Over 6 out of 7 of the participants also said that they thought the ECPA needed to be reformed to protect their digital rights. Over half of them are willing to vote for those who are in favor of this type of reform that will bring them stronger privacy protections.

Opposition Stalls Reform

The House Judiciary Committee finally met early last December to talk about ECPA reform. It has been 29 years since the law was passed to govern electronic communications, and it is in need of some serious review. The Committee recognized this, as did many representatives of the various offices and private companies that shared their views on the reform. Support for reform from Republican and Democrat representatives equaled that of the American public as gathered from the abovementioned poll. All in all, it was looking good.

One of the items in the proposals for reform is a need for any agency to obtain a warrant before they go in and look at private emails and other communications, even if these are more than 6 months old. Most have agreed that this is a good idea, but the proposals did not get very far because of interference from a few organizations. The Securities and Exchange Commission (SEC) is a key player here, representing several unnamed civil agencies. They do not want ECPA reform to go through because they actually want more power to access private online content. Civil agencies unlike government agencies are not allowed under the current law to issue warrants. If reform legislation is finalized, these agencies will no longer have access by administrative subpoena to the communications data that they have been digging through freely for the past three decades. Private messages kept by online services will be protected for 6 months, and all of these will be off limits. Furthermore, the federal Court of Appeals for the 6th circuit ruled in 2010 that accessing private emails that were stored by an online service was unconstitutional because of Fourth Amendment protections. If the Supreme Court upholds the 2010 decision, then these civil agencies will not be able to access any private online content at all.

The SEC has succeeded in delaying the passage of the much needed reform, but at least online services are following the federal ruling and demanding a warrant before they help any agencies to get the data that they are looking for. Still, the delays are getting an especially large degree of attention, primarily because the public is more than ready to see the reform put into action. The overwhelming support from legislators is also putting the SEC’s considerations in sharp contrast with the principles that really should be enacted as soon as possible. We are waiting to see if Congress will stand for what is right under the Constitution or if it will appease the SEC by creating an exception for these civil agencies. The latter is a very scary privacy threat and we hope that such powers that defeat the spirit of ECPA reform will not be given to them.

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