Senator Leahy Wants To Update Digital Privacy Law; Some Good, Some Bad
from the well,-it's-a-start dept
For years, there have been discussions in DC about how we need an update to the Electronic Communications Privacy Act (ECPA), which was put in place in 1986 — way before most people even thought about electronic communications. Much of ECPA was woefully out of date, especially when it came to content stored on remote servers. Senator Patrick Leahy has finally introduced a bill that would update ECPA, and in typical DC fashion, there are some good things in there, but plenty of bad things as well. The key points are that it would require warrants for searches of email and other electronic communications.
There’s been debate on this for years, with some (mainly on the side of law enforcement) arguing that the “third party doctrine” meant that emails stored on third party servers were not subject to 4th Amendment hurdles (probable cause, warrant, etc.). To make matters more confusing, courts have issued very mixed rulings on the matter. The new Leahy bill tries to make it clear that accessing such email requires a warrant. That’s a good thing.
The new bill would also require that those, whose content was accessed, be notified within three days and that they be given a copy of the warrant. There is a 90 day exception, in specific cases where disclosing the info would “imperil” an ongoing investigation or the ever popular, if overly vague, “national security.” Another bit of good news: the law would cover location data from a phone or device — something law enforcement has often tried to access without warrants.
The concerns about the bill, however, are focused on the fact that it offers an exemption, so long as law enforcement claims that the mater is one of “cybersecurity,” which is, again, broad and vague and seems like the sort of “exemption” that will be used as a matter of course. There are also concerns that the bill does not include transparency in the form of reporting requirements, detailing how often these searches are done.
ECPA definitely needs updating, but it should be updated properly and without huge loopholes.