Strange bedfellows come together on electronic privacy

Josh Peterson | Tech Editor

The effort to modernize the nation’s electronic privacy laws has brought together a coalition of strange bedfellows from the right and the left.

Reforming the Electronic Communications Privacy Act of 1986 (ECPA) has been an objective of civil liberties advocates for over a decade, but the fast-changing nature of technology is increasing pressure to update the law.

ECPA was originally created to amend the Omnibus Crime Control and Safe Streets Act of 1968, also called the Wiretap Statute, to specify restrictions on government eavesdropping on wireless and electronic communications.

Katie McAullife, federal affairs manager at Americans for Tax Reform, told The Daily Caller that the coalition was a “no-brainer,” stating that it represents “libertarian, Republican, Democratic and liberal viewpoints.”

McAuliffe noted that subpoenas — not judge-signed warrants — are all that the law currently requires for law enforcement needs to access a person’s email or cloud content from a third party without their knowledge.

“Given how easy it is to get a subpoena, moving to a system that makes a warrant mandatory to access someone’s content held by a email or cloud provider only makes sense, especially if you’re familiar with the Fourth Amendment,” said McAullife.

The Digital 4th Coalition, first launched in March with a mission to modernize ECPA, was initially comprised of advocacy groups Americans for Tax Reform (ATR), Center for Democracy & Technology (CDT) and the American Civil Liberties Union (ACLU).

Heritage Action for America — the DC-lobbying arm of the conservative Heritage Foundation — joined the coalition last week, adding to the coalition’s numbers and lobbying strength.

“Nothing gets passed in congress without bipartisan support, and so we’ve pulled together a group that can reach both parties in Congress,” Laura W. Murphy, director of the ACLU’s Washington Legislative Office, told The Daily Caller.

She said that the coalition thinks that “privacy is one of those common ground issues” and that ECPA reform has “a lot of grassroots appeal.”

“Whether you’re rich or poor, black or white, you’re concerned whether your email is being read, whether your location is being tracked, and people want the protections of the Fourth Amendment,” said Murphy, stating that the Fourth Amendment needs to be brought into the digital age.

Dan Holler, communications director for Heritage Action for America, told The Daily Caller that the conservatives he has spoken with about the issue “see the necessity of ECPA reform.”

“They are, with good reason, inherently skeptical of legislative solutions, but understand the unique dynamic caused by the rapid growth in technology, a decades-old law, and the lack of clarity from the courts,” he said.

 

A number of private companies — including, but not limited to, Apple, Facebook, Google, Microsoft, Reddit and Twitter — have also joined up with various think tanks and advocacy groups to voice their support of ECPA reform through the coalition, DigitalDueProcess.org.

These think tanks and advocacy groups include the ACLU, the American Legislative Exchange Council, TechFreedom, ATR and EFF.

“Digital 4th is providing the muscle, Digital Due Process is showing the breadth of the coalition,” Gregory Noejim, senior counsel for the Center for Democracy & Technology, told The Daily Caller.

Even the Justice Department, which has been vocal about its need for modern surveillance powers in order to track and apprehend suspects, recently conceded that ECPA no longer makes any sense.

In March, acting assistant attorney general in the Office of Legal Policy Elana Tyrangiel told a House Judiciary subcommittee that that “there is no principled basis to treat email less than 180 days old differently than email more than 180 days old,” reported the Associated Press.

Senate Judiciary Committee Chairman Patrick Leahy announced at the beginning of the year that electronic privacy reform would be a priority for his committee this year.

So far, however, the committee’s schedule has mainly been dominated by hearings on gun control and immigration reform.

“Beyond that, in the Senate, they’re not making too many long term commitments,” said Murphy.

“So, this has to vie for time on the calendar along with many other issues,” she said.

Still, that hasn’t stopped Leahy from pushing forward with his plans to get a bill out of committee. Last week, he — along with Utah Republican Senator Mike Lee as his cosponsor — introduced the Electronic Communications Privacy Act of 2013.

The bill would require law enforcement to obtain a warrant in order to compel service providers to hand over emails and other stored documents relevant to an investigation.

Noejim also noted that requiring warrants for obtaining cell phone location information is also a critical piece of the ECPA reform agenda. He said that requiring warrants for content may happen first, but strong bipartisan support has also been shown for requiring warrants for location information as well.

“That location information can be saved by the [wireless] providers, and law enforcement is increasingly showing an interest in it because it’s so revealing about what you are doing and what you have done,” said Noejim.

“We believe that ought to be subject to the warrant requirement as well,” he said.

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