Bipartisan group seeks update to Electronic Communications Privacy Act over concerns of misuse by law enforcement
A bipartisan committee voted Thursday to advance a bill to clamp down on warrantless government searches of email and other private electronic information.
The bill seeks to modify the 1986 Electronic Communications Privacy Act (ECPA) and require government and law enforcement agencies to get a judge's approval in most cases in order to access electronic communications.
A vote is now expected next month but while the bill has cross-party support law officials, regulators and some senators are pushing for amendments to weaken its impact.
Democratic senator Patrick Leahy, co-sponsor of the bill with Utah's Republican senator Mike Lee, said: "I think Americans are very concerned about unwanted intrusions into our private lives in cyberspace. There's no question if someone wants to go into your house and go through your files and draws you are going to need a search warrant. But if you have those same files in the cloud you ought to have the same sense of privacy."
The ECPA was drawn up before email became a ubiquitous form of communication. It has become a hot topic for tech and civil rights groups. In January Google announced that 68% of requests made by officials for its users' private data were made under ECPA subpoenas, which, unlike wiretaps or physical search warrants, typically circumvent the need for a judge's approval. Google said it complies to some degree with 90% of those requests.
Leahy said there was a broad support for the bill in the tech community, on both sides of the House and from liberal and conservative groups.
But other members of the Senate Judiciary Committee expressed concern about the bill. Senator Dianne Feinstein said the committee should "take seriously" the concerns of law enforcement and regulators. Securities and Exchange Committee chairman Mary Jo White, among others, have argued that the bill will hamper its abilities to protect consumers from fraudsters.
Senator Chuck Grassley said that they were setting aside the concerns of law enforcement officials. "Instead it seems a growing distrust of government is driving a significant amount of public opinion these days," he said. Grassley claimed the email debate was part of a wider concern among the public about government accountability, gun rights and civil liberties.
Grassley said Congress would be "abdicating our responsibilities" if it did not take into consideration the concerns of regulators and law enforcement.
Senator Jeff Sessions said major city chiefs of police, FBI groups, district attorney and others had expressed grave concerns about the bill. "It seems to me these concerns are very real," he said. "In the real world agents sometime have to do 30, 40, 50 pages documents to get a warrant. It intimidates them and they just don't try. In cases, particularly terrorism cases, may never be followed up on simply because of that burden"
He said "privacy is very real" but that email was similar to bank records, which can be obtained without a warrant, and that people had a similarly "diminished expectation of privacy" with email.
Leahy said ECPA had been "misused and abused" by law enforcement officials. "There seems to be a feeling in this country, more and more, that because we face threats, as this nation has from the time of its founding, that we somehow give up our rights to privacy. Americans believe in their privacy," he said.
Leahy said amendments would be put online ahead of the hearing.