Within the first month of Congress we've seen over four bills to update the archaic Electronic Communications Privacy Act, which is the law that's been used by the DOJ to obtain emails and the location of your mobile device without a probable cause warrant. This is in clear violation of legal cases interpreting the Fourth Amendment. As the bills begin to move in Congress we urge you to join us in telling our lawmakers to update ECPA now.
The Electronic Communications Privacy Act (ECPA)
Once again, Congress will try to update the outdated Electronic Communications Privacy Act. The law, which was passed in 1986, lays out procedures for when the government can obtain your private electronic messages from service providers, like email or Facebook messages, and other private content stored in the cloud. ECPA states that the government doesn’t need a warrant for emails when they are older than 180 days—even though the Sixth Circuit held that this “180-day rule” violates the Fourth Amendment. Despite the ruling, the Justice Department continues to argue that the DOJ does not have to obtain a warrant for electronic content.
Last Congress Sen. Patrick Leahy successfully moved the Senate Judiciary Committee to approve an ECPA amendment mandating warrants for all private electronic communications, but the bill didn’t get to the full Senate. The Senator, along with Senator Mike Lee and House Reps. Kevin Yoder and Jared Polis introduced legislation to ensure that the same protections applying to your physical letters also apply to your virtual private messages and documents stored by a third party.
Congress should take the lead from the courts and move the legislation forward.
Restricting Government and Corporate Use of your Cell Phone GPS Info
Updating ECPA is also about protecting users’ geolocation information, especially after the Supreme Court’s decision in United States v. Jones, where the Court ruled that the government needs a warrant to monitor an individual with a GPS device for an extended period of time. Sen. Wyden and Rep. Chaffetz's GPS Act mandates that the government obtain a warrant before it seeks a user's geolocation information. Currently, the government argues it can obtain such information without a warrant or probable cause, which is something the government has done at a staggering rate.
But the government isn't the only entity spying on cell phone users. Over and over, users are learning that private companies surreptitiously collect information from users' mobile devices and often share that data with unknown third parties. That's why Congressmen like Sens. Ed Markey and Al Franken introduced legislation last Congress that required clear notification and disclosures when a company collects and shares user information with third parties. They are expected to introduce the same bill this Congress.
EFF, as part of the Digital Due Process Coalition, will continue to push Congress to reform ECPA. So far we're off to a good start as the Yoder-Polis bill has over 220 co-sponsors. We urge Congress to move the bill forward and make the common sense changes needed to update ECPA. Tell your lawmaker to update ECPA now.