The U.S. Justice Department on Tuesday joined a chorus of privacy advocates supporting changes to a 1986 law that currently allows the government to review some emails without a warrant.
The Electronic Communications Privacy Act was created before commercial e-mail existed, let alone became a primary form of communications. As currently written, the ECPA allows U.S. law enforcement to read someone’s emails with just a subpeona from a federal prosecutor if the email is older than six months or is already opened. All others require a warrant from a judge.
“There is no principled basis to treat e-mail less than 180 days old differently than e-mail more than 180 days old,” Elana Tyrangiel, acting assistant attorney general in the Justice Department’s Office of Legal Policy, testified before a House judiciary subcommittee.
Technology companies such as Google and Twitter also back changes to limit government access to citizen’s e-mails by requiring court-ordered searches only.
“The distinctions that ECPA made in 1986 were foresighted in light of technology at the time. But in 2013, ECPA frustrates users’ reasonable expectations of privacy,” said Richard Salgado, Google’s director of law enforcement and information security, before the same subcommittee. “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 this dichotomy.
He later added, “ECPA worked well for many years, and much of it remains vibrant and relevant. In significant places, however, a large gap has grown between the technological assumptions made in ECPA and the reality of how the Internet works today. This leaves us, in some circumstances, with complex and baffling rules that are both difficult to explain to users and difficult to apply.”
The movement to amend the law to reflect today’s concerns is being led by the legislation’s original author — Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.
“When I led the effort to write ECPA 27 years ago, email was a novelty. No one could have imagined the way the Internet and mobile technologies would transform how we communicate and exchange information today. Three decades later, we must update this law to reflect the realities of our time, so that our federal privacy laws keep pace with American innovation and the changing mission of our law enforcement agencies,” he said in a published report.
Richard Littlehale, who leads an investigative unit of the Tennessee Bureau of Investigation, testified that the law as written has assisted child pornography investigations. He believes the privacy issue to be “oversstated.”
“The truth is that no one has put forward any evidence of pervasive law enforcement abuse of ECPA provisions,” Littlehale told the House panel, according to the Associated Press.