A majority of House members now support a bill that would update the woefully antiquated Electronic Communications Privacy Act (ECPA), which specifies standards for law enforcement access to electronic communications. With 218 representatives backing H.R. 1852, the bipartisan “Email Privacy Act,” the House of Representatives should seize the opportunity to pass legislation that takes a meaningful step in addressing concerns that Americans have about law enforcement access to their data.
Updating ECPA with the Email Privacy Act—which establishes a warrant-for-content requirement without carve outs for civil agencies—would bring the law in line with current standard practice based on legal precedence. In 2010, the Sixth Circuit Court of Appeals stated in the U.S. v. Warshak opinion, that the “government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.” The court further held that the Stored Communications Act (which was enacted as Title II of ECPA) is unconstitutional to the extent that it permits the government to compel such disclosure without a warrant.
House action would be an important development in the critical task of reforming ECPA. We stand ready to work with members of the House to pass meaningful ECPA reform this year.