In an era of constant political gamesmanship and gridlock, getting things done in Congress is never easy. That was never clearer than the last Congress’ failure to pass long overdue reforms to an antiquated that today threatens the very thing it was intended to protect – the privacy of Americans’ digital communications and records.
A bipartisan group of more than 270 members of the House of Representatives co-sponsored legislation with the same underlying objective -- to update the Electronic Communications Privacy Act (ECPA). And yet, these bills were left to die without a vote.
The broad support extends beyond the House. Senators Mike Lee and Pat Leahy have introduced similar ECPA legislation and it has the support of nearly one-quarter of the Senate.
ECPA reform proposals enjoy wide support from conservatives, moderates and liberals, small and big business, labor, former prosecutors and civil libertarians. And it’s obvious why.
Under current law every email and text, every Google doc and Facebook message, every picture of our vacation and video of the office softball game is subject to government inspection without a warrant or probable cause if we’ve kept it longer than six months.
ECPA was written in 1986. Those were the days before the World Wide Web existed, when the first Mac had been sold only two years earlier with a nine-inch screen and 128KB of memory. No one kept anything in the “cloud.” There wasn’t any broadband or social media or tablets or Smartphones. Hard drives were small. Service providers charged a lot for the little storage capacity they sold. The relatively few people who used email then never imagined keeping an email longer than it took to send or read it.
So it was perfectly reasonable in 1986 for lawmakers to only protect new email -- those held for less than 180 days -- from government access. Who would keep anything online for longer than six months?
Three decades later, we have an answer. Everybody.
Most of us store all kinds of stuff online for a lot longer than six months. Emails, financial records, proprietary work products, schedules, photographs. Under current law all of it, every email and text, every Google doc and Facebook message, every picture of our vacation and video of the office softball game is subject to government inspection without a warrant or probable cause if we’ve kept it longer than six months.
That’s an outrageous invasion of our privacy, and unlike in 1986, ECPA is no longer an unintended assault on our liberty but an intentional one.
Government agencies such as the Securities and Exchange Commission are lobbying to keep the law on the books unchanged in order to acquire powers Congress and the American people never intended them to have -- to read our personal communications without the constitutional protections of a search warrant.
Whatever our other political disagreements, most Americans share the conviction that our privacy is protected by the Fourth Amendment, which prohibits “unreasonable searches and seizures” of our “persons, houses, papers and personal effects.”
Government agents can’t raid our homes or tap our phones or read our mail without showing a judge they have probable cause to believe we’ve committed a crime and obtaining a search warrant. Why should our possessions and communications be less private online?
The reforms introduced in the House and Senate would restore ECPA’s original purpose, and protect our privacy in the ways we live, communicate, learn, transact business and recreate today.
They are simple and straightforward. We extend constitutional protections to communications and records that Americans store online for any amount of time.
There is no need to delay ECPA reform any longer.
Americans expect us to act on their widespread concerns. The bills are written. The votes are there. Members of Congress are ready to reaffirm a founding principle of American citizenship.
While the world is always changing, our civil liberties must exist unabridged forever.