email privacy

Privacy Trumping Law Enforcement in ECPA Update Debate

For the past several years, lawmakers have struggled to find a balance between the needs of law enforcement and concerns about privacy as they work to update laws such as the Electronic Communications Privacy Act of 1986 (ECPA).

This week the House Judiciary Committee continued in that effort with a hearing on the Email Privacy Act (H.R. 699), which enjoys strong bipartisan backing and has 305 cosponsors.

Despite the strong support in Congress, the Chairmen of the House and Senate Judiciary Committees, Rep. Bob Goodlatte (R-VA) and Sen. Chuck Grassley (R-IA), respectively, continue to maintain reservations that certain provisions in the Email Privacy Act could impede law enforcement investigations.

The Email Privacy Act would amend ECPA to prevent law enforcement agencies from requiring internet service providers (ISPs) and storage companies to grant them access to individuals’ data without first obtaining a warrant.

Inconsistent rulings from courts since a 2010 ruling of a federal appeals court that said the Constitution required police to obtain a warrant to access emails have driven the legislative need to update ECPA.

The hearing offered an opportunity for law enforcement and privacy advocates to each make their case, and saw the majority of representatives siding with the privacy advocates.

The National Association of Assistant United States Attorneys (NAAUSA), in written and oral testimony before the committee said that it supported certain elements of the legislation, such as proposed changes to the Stored Communications Act (SCA) subpart of ECPA, but strongly pushed back against barriers the Email Privacy Act would present to law enforcement in gaining access to “often lifesaving information.”

Similarly, in written testimony the Justice Department emphasized that “in discussing any efforts to modernize ECPA, it is important to take into account the statute’s broad application. As technology continues to advance, ECPA’s importance to both criminal and civil law enforcement will only increase.”

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