As the debate over electronic communications privacy escalates in Congress and around the country, I testified this week before the Senate Judiciary Committee to discuss this very issue. The hearing provided an important opportunity to address users’ very reasonable expectations of privacy when it comes to the content in their email and other online accounts.
Google strongly supports legislation to update the Electronic Communications Privacy Act (ECPA), which was signed into law almost thirty years ago -- long before email accounts and the Web were part of our daily lives. As it is currently written, ECPA allows government agencies to compel a provider to disclose the content of communications, like email and photos, without a warrant in some circumstances. This pre-digital era law no longer makes sense: users expect, as they should, that the documents they store online have the same Fourth Amendment protections as they do when the government wants to enter the home to seize documents stored in a desk drawer.
There is no compelling policy or legal rationale for there to be different rules. Indeed, the law as currently written is unconstitutional, as the Sixth Circuit Federal Court of Appeals held back in 2010 in United States v. Warshak. Google requires that law enforcement secure a warrant to compel Google to disclose content.
In spite of the tremendous support for the legislation voiced across the political spectrum, some agencies that investigate civil infractions, as opposed to violations of criminal law, have sought to delay fixing the infirmities, and have even asked Congress for new and expanded powers. They seek the authority to force providers to search for and disclose users’ emails, documents and other content, rather than getting the information directly from users as they currently do. Congress should reject these efforts to expand the authority of these agencies, and should remain focused on fixing this broken statute.
It is undeniable that ECPA no longer reflects users’ reasonable expectations of privacy and no longer comports with the Constitution. The Senate legislation, the ECPA Amendments Act of 2015, and its companion in the House, the Email Privacy Act, will ensure electronic communications content is treated in a manner commensurate with other papers and effects that are protected by the Fourth Amendment.
The time for reform is now.
