|WASHINGTON – Senate Judiciary Chairman Patrick Leahy (D-VT) on May 17, 2011, introduced important legislation that would update the Electronic Communications Privacy Act (ECPA). ECPA was passed in 1986, before the advent of much of our communications technology, and has not been substantially updated since.
The ECPA Amendments Act would give Americans vast and much needed protections for their online communications, including texts, emails and social networking messages. The bill also would provide some protections against location tracking by requiring that law enforcement obtain warrants for both real-time and prospective requests.
However, the American Civil Liberties Union maintains that major ECPA reform must include a number of additional elements, including stricter reporting requirements that would allow lawmakers and the public to understand better how these surveillance powers are being used; a suppression remedy that would mandate that information obtained in violation of ECPA would not be admissible in court; and a warrant requirement for not only future tracking records, but historical ones like past locations and phone calls.
Finally, the ACLU remains concerned about any exemption to ECPA that would allow law enforcement broad powers to gather electronic records under the guise of cybersecurity. Allowing the release of content under the rationale of cybersecurity threatens to swallow any reform efforts.
According to a statement by Laura W. Murphy, Director of the ACLU Washington
“Clearly, an electronic privacy law that was written the year Top Gun was in theaters is in desperate need of an update. Technology has vastly outpaced our privacy rights, and this bill is a good first step toward rectifying that disparity. It should be common sense that the information we store and share online should have the same level of Fourth Amendment protections from government intrusion as our offline ‘papers and effects.’ We’re hopeful that Congress will continue to add further protections to the ECPA Amendments Act to ensure that when Americans use new technologies they receive the same constitutional protections.”