Lee Delivers Remarks on Electronic Communications Privacy Act
April 18, 2013
WASHINGTON—Today, Senator Mike Lee (R-UT) delivered the following remarks in a Senate Judiciary Committee meeting regarding the bipartisan Electronic Communications Privacy Amendments Act of 2013 (ECPA). Senator Pat Leahy (D-VT) and Senator Lee are co-sponsors of the legislation.
In 1986, Chairman Leahy led the effort to enact the Electronic Communications Privacy Act—an important law that ensured government agencies would respect the Fourth Amendment in accessing an individual’s electronic communications. In the nearly three decades since ECPA became law, technology has advanced rapidly. The prevalence of email and the low cost of electronic data storage have made what were once robust protections insufficient to ensure that citizens’ Fourth Amendment rights are adequately protected.
As we witnessed recently with the Internal Revenue Service—which had in some cases advised agency officials that they did not need a warrant to access private emails that are more than 180 days old—these concerns are more than theoretical. For this reason, I have worked together in bipartisan fashion with Chairman Leahy to introduce much-needed and commonsense updates to ECPA.
Our bill prohibits an electronic communications or remote computing service provider—like Gmail or Facebook or Twitter—from voluntarily disclosing the contents of customer emails or other communications. It eliminates the ambiguous and outdated “180 day rule” that some government agencies believe grants them warrantless access to the content of older emails. Instead, all requests for the content of electronic communications would require a search warrant based on probable cause. And law enforcement agencies would be required to notify, within 10 days, any persons whose email accounts are searched, subject to some logical exceptions.
This legislation is also carefully crafted so that it does not act as a serious impediment to the ability of law enforcement agencies to conduct investigations. Routing information, customer names, session time records, and other non-content information will still be available through subpoenas. The bill also contains a rule of construction allowing government access to internal corporate email when the communications are to or from an officer, agent, or employee of a company and the company is acting as the electronic communications service provider for its own internal email system.
The Leahy-Lee ECPA Amendments Act of 2013 is truly bipartisan in nature. It enjoys broad support from the technology industry, privacy advocates, constitutional scholars, and policy groups on both ends of the ideological spectrum. I urge my colleagues on both sides of the aisle to support this legislation.
In 1986, Chairman Leahy led the effort to enact the Electronic Communications Privacy Act—an important law that ensured government agencies would respect the Fourth Amendment in accessing an individual’s electronic communications. In the nearly three decades since ECPA became law, technology has advanced rapidly. The prevalence of email and the low cost of electronic data storage have made what were once robust protections insufficient to ensure that citizens’ Fourth Amendment rights are adequately protected.
As we witnessed recently with the Internal Revenue Service—which had in some cases advised agency officials that they did not need a warrant to access private emails that are more than 180 days old—these concerns are more than theoretical. For this reason, I have worked together in bipartisan fashion with Chairman Leahy to introduce much-needed and commonsense updates to ECPA.
Our bill prohibits an electronic communications or remote computing service provider—like Gmail or Facebook or Twitter—from voluntarily disclosing the contents of customer emails or other communications. It eliminates the ambiguous and outdated “180 day rule” that some government agencies believe grants them warrantless access to the content of older emails. Instead, all requests for the content of electronic communications would require a search warrant based on probable cause. And law enforcement agencies would be required to notify, within 10 days, any persons whose email accounts are searched, subject to some logical exceptions.
This legislation is also carefully crafted so that it does not act as a serious impediment to the ability of law enforcement agencies to conduct investigations. Routing information, customer names, session time records, and other non-content information will still be available through subpoenas. The bill also contains a rule of construction allowing government access to internal corporate email when the communications are to or from an officer, agent, or employee of a company and the company is acting as the electronic communications service provider for its own internal email system.
The Leahy-Lee ECPA Amendments Act of 2013 is truly bipartisan in nature. It enjoys broad support from the technology industry, privacy advocates, constitutional scholars, and policy groups on both ends of the ideological spectrum. I urge my colleagues on both sides of the aisle to support this legislation.
