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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

ECPA Reform Bill Sails Through Senate Judiciary Committee

Posted in Congress, Social Media, United States

Yesterday, a bill that would reform the Electronic Communications Privacy Act of 1986 (“ECPA”) was approved by the Senate Judiciary Committee on a voice vote. Under ECPA, as it currently stands, police need only a subpoena, issued without approval by a judge, to access private e-mails that have already been opened or that are more than 180 days old. Under the reform bill, which was sponsored by Committee Chairman Patrick Leahy (D-Vt.) and Senator Mike Lee (R-Utah), police would have to obtain a search warrant before requiring providers of electronics communications services to provide them access to e-mails and other private online content, including Facebook messages.

Privacy advocates, including public interest organizations and Internet businesses, have long urged Congress to update ECPA to bring it in line with the myriad technological changes that have taken place since its enactment nearly 30 years ago, as well as consumers’ evolving expectations of privacy in their electronic communications. A statement by Computer & Communications Industry Association president and CEO Ed Black reflects that widespread position: “This is a long overdue step toward bringing our online privacy laws closer to both our existing Fourth Amendment protections and our reasonable expectations for privacy. . . . Most people don’t realize that six-month-old emails have different levels of privacy protection than newer emails.” The Internet Association, an organization of prominent Internet businesses including Facebook, Google, and eBay, called the Senate Judiciary Committee’s passage of the ECPA reform bill “a significant step in safeguarding the privacy of users’ electronically stored content.” The passage of the bill through the Judiciary Committee on a voice vote bodes well for its chances of being passed by the full Senate.