Senator Patrick Leahy (D-VT) and Senator Mike Lee (R-UT) today introduced a bill that would reform the Electronic Communications Privacy Act (ECPA). This Senate “Dream Team” will give ECPA reform a strong boost: Leahy, the Chairman of the Senate Judiciary Committee and original author of the 1986ECPA, is joining forces with Mike Lee, a Tea Party favorite, and a strong voice for Constitutional rights when the Committee marked up a nearly identical bill last year.
The Leahy-Lee bill would amend ECPA to require government officials to obtain a warrant in order to require ISPs or other online service providers to disclose the private communications of their users (except, of course, in emergency cases). This would include personal or proprietary documents stored with providers of “cloud” services (the increasingly popular services that allow companies, non-profits and individuals to edit documents from any location). Under ECPA as currently written, the warrant requirement applies only to email 180 days old or less and does not apply at all to documents stored in the cloud. Simply put, the goal of the Leahy-Lee legislation is to ensure that the warrant standard of the U.S. Constitution, which now applies to letters you send in the US Mail, is extended to your email.
Importantly, the legislation would maintain existing emergency exceptions to the warrant requirement so law enforcement can act quickly in those occasions when there is no time to go to a judge. It also leaves in place the provisions of current law that require providers – without a warrant – to affirmatively report child pornography and other child abuse of which they become aware.