May 23, 2013 | By Nate Cardozo and Mark Jaycox

Even Attorney General Eric Holder Supports ECPA Reform

In a hearing last week in front of the House Judiciary Committee, Attorney General Eric Holder announced his support for updating the Electronic Communications Privacy Act (ECPA). ECPA, which was written in 1986, is the main privacy law protecting private electronic messages like email, private Facebook messages, and Twitter direct messages. The law has been used by the government to argue that emails older than 180 days can be obtained without a probable cause warrant.

The current bills moving to reform ECPA focus on clarifying that the government must obtain a warrant before looking at email and other private online messages. In 2010, the Sixth circuit ruled that, as written, this so-called "180-day rule" was unconstitutional. It's taken the Department of Justice (DOJ) years, but it's finally changing its tune. Attorney General Eric Holder is now the most senior official in the Administration to publicly support the so called "warrant for content" aspect of ECPA reform.

Attorney General Holder's comments follow a March hearing where the Director of the DOJ's Office of Legal policy declared: "there is no principled basis to treat e-mail less than 180 days old differently than e-mail more than 180 days old.” At the hearing last week, Attorney General Holder unequivocally stated his support for ECPA reform noting all email should be protected by a warrant. Attorney General Holder's statement finally confirms the DOJ's support of a statutory requirement for a warrant to access all email.

This is the second year in a row where ECPA reform bills have been introduced in both the House and the Senate. Bills that focus on protecting a user's geolocation with a warrant requirement were introduced by Senator Wyden and Rep. Chaffetz, while another three different bills ensure a warrant requirement for private messages. In the House, Reps. DelBane and Lofgren have proposed HR 983 and Rep. Yoder has introduced HR 1852, while in the Senate, Senators Lee and Leahy have proposed S 607. Unfortunately, the latter group of bills are missing one key component: real teeth in the form of a suppression remedy.

In the current drafts, if law enforcement obtained your email without a warrant, in violation of the revised law, nothing would prevent that illegally obtained evidence from being admitted in a criminal trial. A suppression remedy is a common sense addition to the bill ensuring that its impact is equal to its intent: ensuring all private virtual messages—just like any other private physical message—are available to the government only with a warrant based on probable cause.

It's great to see ECPA reform advancing. The Digital Due Process coalition, a diverse coalition of privacy advocates (including EFF) and major technology companies, has worked hard to advance ECPA reform and should be commended for its work. But a supression remedy should be in any ECPA reform bill. Regardless, Attorney General Holder's statement is an encouraging sign by the White House that the DOJ believes in ECPA reform and will not impede its progress.


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