Bills Seek to Close Loopholes in Electronic Communications Privacy Act

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May 12, 2016
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In our digital age, we may rely on our emails to be a substitute for handwritten letters, documents shared on cloud storage to replace circulating a singular physical copy, and a photo posted on Instagram to serve as an alternative to a tangible printed snapshot. Advancements in technology have allowed us to change our methods of communicating and interacting with one another. Now it is time for the law to reflect that digital communication is worthy of the same constitutional protections as those afforded to physical documents, photos and letters.

There is an absurd inconsistency in the fact that a warrant is needed to search an individual’s physical calendar, but not always their digital calendar.

The Bill of Rights Defense Committee/Defending Dissent Foundation is alarmed by these inconsistencies because digital information deserves the protections guaranteed by the Fourth Amendment and antiquated laws must be replaced when used by law enforcement to infringe on privacy. The BORDC/DFF supports the Email Privacy Act on the national level and the New York State Electronic Communications Privacy Act on the state level, since both pieces of proposed legislation are intended to close loopholes that allow digital communications to be collected without a warrant.

Congress: Email Privacy Act Gains Support, But Moves Slowly

On the national level, Congress is currently attempting to pass the Email Privacy Act, which would amend and close loopholes in the Electronic Communications Privacy Act of 1986. If enacted, the Email Privacy Act would require that law enforcement be granted a warrant before demanding that technology companies provide the content of customer communications (emails, information stored on the cloud), regardless of how long ago the communication occurred. This effectively closes a loophole in the Electronic Communications Privacy Act of 1986, which permits law enforcement to use a subpoena and not a warrant if electronic communications were over 180 days old. The difference between a warrant and subpoena in this context is notable for a number of reasons, with the most important being that a subpoena does not necessitate having probable cause and therefore allows for the collection of more user content.

The bill amassed considerable support in the House after undergoing a number of alterations in committee, and is now in front of the Senate for consideration. The Email Privacy Act’s prospects for being passed partially depend on the actions of Senate Judiciary Chairman Chuck Grassley, who indicated yesterday that he is considering bringing the Act up for a vote in the coming weeks. In comments made to Politico, Sen. Grassley suggested that the unanimously supportive vote received in the House is encouraging.

The Email Privacy Act has garnered support from a wide-range of other organizations, including the ACLU and the New York Times Editorial Board. Federal agencies, such as the Securities and Exchange Commission, are the primary opponents of the bill. These agencies claim that the bill will impair their ability to investigate financial fraud, since civil law enforcement agencies cannot attain criminal warrants. SEC Enforcement Director Andrew Ceresney disparaged the bill for being a “dangerous digital shelter for fraudsters”, which is a scare tactic wrapped in a fundamental misunderstanding of the fact that the Fourth Amendment is supposed to provide a “shelter” of rights to American citizens.

States Join to Push Anti-Surveillance Legislation

On the state level, New York has joined sixteen other states and the District of Columbia in proposing legislation that would combat warrantless government surveillance. New York is currently considering the New York State Electronic Communications Privacy Act (NY-ECPA). New York Assemblyman Jeffrey Dinowitz, motivated by the Supreme Court decisions in United States v. Jones and Riley v. California, chose to introduce NY-ECPA in an effort to reinforce Fourth Amendment safeguards by closing many of the same loopholes that the Email Privacy Act seeks to close.

Proponents of the bill stress that New Yorkers rely heavily on their computers, cell phones and other internet connected devices to help them both at work and in their personal lives with communication and research. When the public begins to doubt the security of their information when using their technology, it negatively impacts citizen confidence in their freedoms to engage in civil society and speak freely on matters that impassion them. BORDC/DDF stands in solidarity with other civil rights groups advocating for the bill, because American citizens should not be intimidated out of their rights to politically dissent on forums that allow for widespread organizing and lively debate.

It is the responsibility of the legislature to be reactive to the needs expressed by its citizenry, and the American public has overwhelmingly called for reform in how law enforcement collects their digital data. According to a poll conducted by the Pew Research Center in 2014, 53% of Americans oppose government collection of phone and Internet data. Similar numbers have come out of countless polls, and now it is time for our government to reform the law to account for technological advances.

If you are a resident of New York and want to take action in passing the Electronic Communications Privacy Act, you can send an email to your representative here.