Following the Senate’s September hearing, the House Judiciary Committee today held a hearing on reforming the Electronic Communications Privacy Act, the federal law that regulates government access to private communications records stored by online service providers.
Congress is considering a pair of identical bills that would create a warrant requirement for any government entity that seeks personal content stored in the cloud: the Senate version is the Electronic Communications Privacy Act Amendments Act (S. 356) while the House calls theirs the Email Privacy Act (H.R. 699).
Not only did several of the members attending the House hearing express support for H.R. 699, the bill now has over 300 co-sponsors and would overwhelmingly pass if brought up for a vote on the House floor.
However, the Securities and Exchange Commission is once again asking for more authority than it has today—a proposal that unfortunately Chairman Goodlatte (R-VA) supports.
ECPA as currently worded requires the government to obtain a search warrant based on probable cause, and signed by a judge, before it can access communications content such as emails or text messages that are 180 days old or newer.
The law on its face also permits agencies to use administrative subpoenas to access communications content older than 180 days. However, the majority of service providers follow the Sixth Circuit’s ruling in Warshak and have for the last few years required that the government show up with a warrant before turning over any content stored in the cloud, regardless of age.
Given that the SEC and other civil agencies lack warrant power (which is reserved for law enforcement), they are eager for a new authority to obtain any communications content should Warshak’s across-the-board warrant requirement become codified.
The SEC testified that currently it does not use administrative subpoenas to obtain communications content from online service providers, and instead seeks emails directly from individuals. Yet the agency wants to be able to obtain not only older communications content from third parties, but also messages that are 180 days old or newer, which is authority that civil agencies currently do not have in any form—a point that Rep. Sensenbrenner (R-WI) made.
On this issue, Rep. DelBene (D-WA) expressed concern that the SEC seems to view online service providers as witnesses or informants at the disposal of agency investigators, rather than the digital homes of personal communications. She likened the SEC’s position as demanding the authority to order a locksmith to unlock an individual’s front door anytime the agency seeks information in an investigation.
Taking a global view, Rep. Lofgren (D-CA), a 2014 EFF Pioneer Award winner, made the point that ECPA without reform is bad for American businesses as potential customers in foreign countries view personal content stored in the cloud as highly vulnerable to U.S. government intrusion.
EFF continues to support a “clean” ECPA reform bill that protects personal content stored in the cloud the same way the Fourth Amendment clearly protects personal content stored in a home or office—with a probable cause warrant. We urge you to contact your senators and representatives today!